NASATIR v. Lemonier Verdier, M.D., et al., Defendants. (1997)

Order, Supreme Court, New York County (Stanley Sklar, J.), entered on or about December 14, 1995, which denied defendant's motion to confirm the Special Referee's report recommending dismissal of the action for lack of service of process, found that service was properly made pursuant to CPLR 311, and denied defendant's motion, previously held in abeyance, to dismiss the complaint for lack of personal jurisdiction, unanimously affirmed, without costs.

 The motion court correctly held that because defendant's employee, who was authorized to accept service, could not say with certainty that she did not receive a summons on the day in question, she failed to effectively rebut the affidavit of service and the burden of proof never shifted back to plaintiff (see, Lincoln First Bank-Cent. v. Bombard Chevrolet, 55 A.D.2d 1048, 391 N.Y.S.2d 927;  Anton v. Amato, 101 A.D.2d 819, 475 N.Y.S.2d 298).   While the employee did testify that she was never served in her “personal office”, and while the process server, after repeatedly testifying that he did not remember anything about the service in question, did answer with a simple “Yes” to question of whether the service was made in the employee's “personal office”, that term was never defined, and it is not clear whether the two witnesses were referring to the same space.

MEMORANDUM DECISION.