Loomis v White

[*1] Loomis v White 2007 NY Slip Op 51958(U) [17 Misc 3d 1114(A)] Decided on July 16, 2007 Supreme Court, Oneida County Julian, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 16, 2007
Supreme Court, Oneida County

Randy Loomis, Plaintiff,

against

Michael J. White and Sylvan-James Associates, Inc., Defendants.



32-06-1152



Ronald C. Powers, Esq., of Counsel for the Plaintiff.

O'Shea, Mcdonald, Panzone & Stevens (J. Kevin O'Shea, Esq., of Counsel) for the Defendants.

Robert F. Julian, J.

By prior decision dated February 27, 2007, this court ordered a traverse hearing.

The question posed at that proceeding was whether or not proper service was obtained upon the defendant corporation Sylvan-James Associates, Inc. pursuant to CPLR§311(a)1. The factual dispute to be resolved centers on the communications on the day of alleged service of the summons and complaint between the process server, Mr. Beverly, and the defendant's employee, Ms. Geno. Mr. Beverly testified that upon arrival at the corporate offices of the defendant, a health insurance sales agency, he advised the receptionist that he had a legal document to serve and was referred by the receptionist to a person described as the office manager, Ms. Geno. Mr. Beverly testified that Ms. Geno in response to his question as to whether or not she was empowered to accept service of process stated, "Yes, we get these all the time". In her testimony, Ms. Geno denied that she is the office manager with much equivocation, and her recollection of the entire conversation is at best hazy:

"And he said that he would need my signature, asked me for [*2]my license. I'm I don't recall specifically what he said, but I said yes, absolutely, the person that you need to speak to is not in the office right now, but if you'd like to leave the papers, that's fine, and of course I'll sign for them".

She further testified that when she told Mr. Beverly that she accepted documents regularly, she actually meant that she accepted deliveries such as Federal Express or UPS. She further testified that she knew she was receiving a legal document and that she believed that Mr. Beverly, who was dressed in his company uniform, was a Sheriff. She also testified that she had never accepted service of process before. She had the following exchange with the court regarding her conversation with Mr. Beverly prior to accepting the papers from him: The Court: What did Mr. Beverly say to you in terms of what document he had in his hand, did he describe it to you in any way, shape or form?A. He I believe he said it was a summons.The Court: What did you understand that to mean?A. A summons, I mean, I after he said that he was serving me with a summons, I did not say we receive them all the time. He I believe he asked me if I was authorized to accept, not a summons specifically.The Court: Did he ask you if you were authorized to accept legal process?A. No, he did not ask that.The Court: What did he ask you if you were authorized to accept?A. Any delivery, well I don't recall specifically what he said.

She does not remember what Mr. Beverly specifically asked her about her authority to accept legal documents. Mr. Beverly, on the other hand, is clear and unambiguous that she represented that she was authorized to accept service of legal process.

Mr. Beverly specifically testified that he asked Ms. Geno if she was authorized to receive legal documents for service and that she answered in the affirmative. He further testified that she produced her driver's license pursuant to his request and that she signed for the summons and complaint.

Thereafter the Summons and Complaint were turned over to defense counsel for timely answer. [*3]

The leading Court of Appeals case regarding implied agency for receipt of corporate service is quite similar to the case at bar: "It is hard to imagine that the receptionist and the person who took the summons would both be ignorant of the established or accepted procedures for handling process servers, particularly in view of the fact that they were employed by an insurance company which must be involved in litigation with some degree of regularity." Fashion Page v. Zurich Ins., 50 NY2d 265, at 273-274.

This court resolves the factual dispute by finding that Ms. Geno represented to the process server that she was empowered to accept process.

The court further finds that the corporation held out Ms. Geno as an agent upon whom process could be served because her conduct and words created an implied or apparent agency for that purpose. Fashion Page, Ltd. v. Zurich Ins. Co., 50 NY2d 265; M'Baye v. World Boxing Ass'n, 429 F. Supp. 652. Ms. Geno represented to the process server that she was empowered to accept service of process. She was described as the office manager by the receptionist and she clearly had significant managerial status. "Implied agency would be redefined out of existence if the corporation were allowed to repudiate her representations. Plaintiffs corporation was doing business in New York State:

"It generally cannot be heard to complain that the summons was delivered to the wrong person when the process server has gone to its offices, made proper inquiry of defendant's own employees and delivered the summons according to their directions." Fashion Page v. Zurich, Ins.(supra), 273.

Because service was made upon an office manager at the corporate office, it would work an inappropriate hardship on the plaintiff in this case, where notice of the lawsuit has clearly been delivered by service upon the defacto office manager at the corporate offices to one who claims authority to accept service, to repudiate the efficacy of service.

Service upon Sylvan James Associates, Inc. was effectuated pursuant to CPLR §311(a)1.and the affirmative defense of lack of jurisdiction is dismissed.

The Plaintiff is directed to prepare an order on notice to the adverse parties. Upon any objection to the form of the order, the prevailing party shall make a motion to settle the order on notice.

The Court has not and shall not file or serve this decision or any order based hereon or contained herein; the proper party is hereby directed to do so, and serve all other parties.

Utica, NY _____________, 2007

_____________________________ [*4]

Robert F. Julian, J.S.C.