E. & R. Mavin Construction Ltd. v. Lebewohl

Judgment, Supreme Court, New York County (Walter Schackman, J.), entered December 5,1995, dismissing the complaint, and bringing up for review an order which granted defendant’s motion to confirm a Special Referee’s report recommending dismissal of the complaint for lack of personal jurisdiction due to improper service, and denied plaintiffs’ cross motion to reject such report, unanimously affirmed, without costs. The appeal from the order, same court and Justice, entered November 21, 1995, is unanimously dismissed, without costs, as subsumed within the appeal from the judgment.

The finding that plaintiffs did not meet their burden of proving proper service of process is adequately supported by the significant discrepancies between defendant’s actual height, weight, age and hair color and the process server’s description thereof both in his affidavit of service and traverse testimony and by the testimony and corroborating photographic evidence that defendant had a full facial beard at the time of the al*137leged service that went unnoticed by the process server. The Special Referee’s first report, which found service proper by mistakenly shifting the burden of proof to the opponent of service where the Statute of Limitations has run, was properly rejected by the IAS Court with instructions to the Special Referee to reconsider the service issue without regard to the Statute of Limitations. We have considered plaintiffs’ other arguments, including that the Special Referee made new factual findings in his supplemental report, and find them to be without merit. Concur—Murphy, P. J., Williams, Tom and Mazzarelli, JJ.