Practice point: The Appellate Division affirmed the dismissal as to defendant rehabilitation facility, pursuant to CPLR 3211(a)(8). Jurisdiction over the defendant was not
obtained by delivery of the summons and complaint to the Secretary of
State, because the summons and complaint misstated the defendant's name. Jurisdiction was not
obtained by the alleged delivery of the summons and complaint to an
employee at the facility's security desk because it is a limited
liability company, and its four individual members are the only persons
authorized to accept service on its behalf, pursuant to CPLR 311-a.
Student note: The Appellate Division determined that the motion court properly considered the motion, even though the Defendant allegedly failed to properly serve its
motion papers. The plaintiff requested and obtained two adjournments of
the motion return date, and thereafter submitted an affirmation in
opposition which addressed the merits of the motion, and was accompanied
by evidentiary submissions. Under these circumstances, the plaintiff
was not prejudiced by the allegedly improper service of the motion
papers, and waived his objection.
Case: Ciafone v. Queens Ctr. for Rehabilitation & Residential Healthcare, NY Slip Op 01774 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: The relation-back doctrine, and leave to amend.
