Yoon Kim v. New York State Health Department

—Order, Supreme Court, New York County (Barbara Kapnick, J.), entered September 4, 1998, which denied plaintiff’s motion for a default judgment as against the individual defendants, unanimously affirmed, without costs.

A default judgment was properly denied as against the individual defendants because, among other reasons, they were never personally served with process in accordance with CPLR 307 (see, Matter of Spodek v New York State Commr. of Taxation & Fin., 85 NY2d 760, 766; Dreger v New York State Thruway Auth., 81 NY2d 721, 724), and the materials plaintiff seeks may be confidential under Public Health Law § 230 (9), (10) and (11) and § 2805-m (see, Atkins v Guest, 201 AD2d 411). We would also note that the individual defendants do not personally possess the agency defendant’s records in issue, and that plaintiff’s dispute appears to be with the agency, which answered in timely fashion. Concur — Sullivan, J. P., Rosenberger, Tom, Saxe and Buckley, JJ.