Thermidor v. Wyckoff Heights Hospital

In a medical malpractice action, the defendant Angelo Sersante appeals from an order of the Supreme Court, Kings County (Pizzuto, J.), dated March 12, 1987, which (1) granted the plaintiff’s motion to strike his affirmative defense of lack of personal jurisdiction, and (2) denied his cross motion for summary judgment dismissing the complaint insofar as it is asserted against him on the ground of lack of personal jurisdiction.

Ordered that the order is reversed, on the law, with costs, the motion is denied, the cross motion is granted, the complaint is dismissed insofar as it is asserted against the defendant Sersante, and the action as against the remaining defendants is severed.

The uncontroverted testimony of the plaintiff’s process server at the traverse hearing established that the delivery of the summons and complaint to the defendant doctor’s secretary occurred outside of the doctor’s presence. Thus, service upon the defendant Dr. Sersante was not properly effected pursuant to CPLR 308 (1) (see, Selby v Jewish Mem. Hosp., 130 AD2d 651 [decided herewith]; Espy v Giorlando, 85 AD2d 652, affd 56 NY2d 640; see also, Macchia v Russo, 115 AD2d 595, affd 67 NY2d 592). Mangano, J. P., Eiber, Kunzeman and Harwood, JJ., concur.