Summary
In Caudle (supra, 146 AD2d, at 599) and Phi Sigma Phi Sorority v Simons (supra, 137 AD2d, at 874), both decided prior to Dorfman (supra), the Appellate Division assumed, without deciding, that proof of a knowing misrepresentation as to identity would be sufficient to sustain service under CPLR 308 (1).
Summary of this case from BILLING RESOURCES v. HaddadOpinion
January 17, 1989
Appeal from the Supreme Court, Westchester County (Wood, J.).
Ordered that the order is affirmed, with costs.
The plaintiff attempted to serve the summons and complaint by personal delivery in accordance with the terms of CPLR 308 (1). However, the summons and complaint were instead delivered to Dr. Merwin Adler, the defendant's father, with whom the defendant shared an office. The plaintiff's process server testified that the man to whom he delivered the summons and complaint had identified himself as "Jeffrey Adler", whereas Merwin Adler testified that he had identified himself only as "Dr. Adler". Merwin Adler also testified that he did not discover that the summons and complaint were not addressed to him until after having received it and after having brought it back from the reception area into his office. The hearing court determined that the plaintiff had failed to prove that the court had acquired in personam jurisdiction under these circumstances. We affirm.
The Court of Appeals has expressly left open the question whether personal jurisdiction may be obtained pursuant to CPLR 308 (1) where the summons and complaint are delivered to a third party who identifies himself as the defendant (see, Macchia v Russo, 67 N.Y.2d 592). Assuming, without deciding, that jurisdiction may be conferred under such circumstances, we believe that it would be necessary for the plaintiff to show that the defendant was to some extent aware of the alleged misrepresentation (see, Phi Sigma Phi Sorority v Simons, 137 A.D.2d 873, 874). In the present case, even if it were assumed that Merwin Adler misleadingly identified himself as Jeffrey Adler, there is insufficient evidence to warrant the conclusion that Jeffrey Adler knew of or participated in such misrepresentation. There is no evidence that the defendant sought to evade service (cf., Bossuk v Steinberg, 58 N.Y.2d 916, 918; McDonald v Ames Supply Co., 22 N.Y.2d 111, 115; Spector v Berman, 119 A.D.2d 565). Furthermore, in light of the ambiguity of the evidence on this score, we find, as a matter of fact, that the plaintiff failed to meet his burden of proving that Merwin Adler in fact misrepresented his identity (see generally, Aquila v Aquila, 129 A.D.2d 544; Martini v Powers, 105 A.D.2d 731). We credit Merwin Adler's testimony that he correctly identified himself as "Dr. Adler" and was not asked to give any further identification.
We therefore conclude that the plaintiff failed to meet his over-all burden of establishing that personal jurisdiction over the defendant had been obtained, and we accordingly affirm the order under review. Mollen, P.J., Bracken, Sullivan and Harwood, JJ., concur.