Ellis v Schlanger & Schlanger, LLP

[*1] Ellis v Schlanger & Schlanger, LLP 2013 NY Slip Op 51662(U) Decided on October 11, 2013 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 11, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J. , Shulman, Torres, JJ
570539/13.

Gerrald A. Ellis, Plaintiff-Appellant, - -

against

Schlanger & Schlanger, LLP, Michael Schlanger and Daniel Schlanger, Defendants-Respondents.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Nancy M. Bannon, J.), dated March 27, 2013, which granted defendants' motion to dismiss the complaint for lack of personal jurisdiction.

Per Curiam.

Order (Nancy M. Bannon, J.), dated March 27, 2013, reversed, without costs, complaint reinstated and matter remanded to Civil Court for a traverse hearing.

The record so far developed on defendants' CPLR 3211(a)(8) motion to dismiss for lack of personal jurisdiction raises factual issues as to whether service was made by first class mail and whether the mailing envelope used by plaintiff's process server bore the legend "personal and confidential" (CPLR 308[2]; see Mastropierro v Bennett, 233 AD2d 483, 484 [1996]), necessitating a traverse hearing. Any deficiency in the affidavit of service on these matters is merely a "nonjurisdictional irregularity" and would not defeat the action if shown to be properly commenced (see PM-OK Assocs. v Britz, 256 AD2d 151, 152 [1998]), particularly where, as here, the issue of the sufficiency of the mailing envelope was raised not by the defendants below but by the court, sua sponte (id.). We reject, as did the motion court, defendants' remaining objections to service, including their assertion that service was not made at their actual place of business and that the person served was not the "managing or general agent" (CPLR 310-a) of the partnership defendant for purposes of accepting service.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 11, 2013