Kleinplatz v Burstein

Kleinplatz v Burstein 2013 NY Slip Op 07571 Decided on November 14, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 14, 2013
Tom, J.P., Mazzarelli, Freedman, Richter, Feinman, JJ.
108314/08

[*1]11075 Joseph Kleinplatz, Plaintiff-Appellant,

v

Karen Burstein, Defendant-Respondent, John Does I through X, Defendants.




Joseph Kleinplatz, appellant pro se.
Judd Burstein, P.C., New York (Judd Burstein of counsel), for
respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 2, 2013, which, after directing a traverse hearing in this action alleging legal malpractice, dismissed the complaint due to improper service, unanimously affirmed, without costs.

Plaintiff commenced this action by service of a summons with notice on October 13, 2008. On October 15, 2008, defendant's counsel served on plaintiff a notice of appearance and demand for complaint. Defendant averred that the complaint was never received following the demand. Plaintiff contended that he served the complaint on October 14, 2008, sending it via first- class mail to defendant's counsel, but he failed to submit clear evidence indicating that such mailing occurred. Under these
circumstances, dismissal of the complaint was proper (see Forty Cent Park S., Inc. v Kiss, 40 AD3d 236 [1st Dept 2007]).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 14, 2013

CLERK