Agarwal v. Flushing Hospital & Medical Center

In a medical malpractice action, plaintiff appeals from an order of the Supreme Court, Queens County (Kunzeman, J.), dated October 11, 1984, which denied his motion to strike defendant A. Choa’s affirmative defense of lack of personal jurisdiction after a traverse hearing. (Plaintiffs notice of appeal, which inaccurately described the order as having been entered Sept. 21, 1984, is deemed valid [CPLR 5520 (c)].)

Order affirmed, with costs.

Special Term correctly found that plaintiff failed to establish that he had properly served defendant A. Choa by substituted service pursuant to CPLR 308. Plaintiffs two attempts to serve Dr. Choa personally before June 30, 1983, do not constitute due diligence, nor do the four subsequent attempts, none of which were made at Dr. Choa’s place of employment. Furthermore, the evidence supports Special Term’s determination that Dr. Choa’s relocation to California was bona fide, and that she moved on June 30, 1983, approximately 12 days prior to plaintiffs substituted service. Consequently, the summons and complaint were not affixed to Dr. Choa’s actual dwelling place as required (CPLR 308 [4]). Mollen, P. J., Thompson, NiehofF and Eiber, JJ., concur.