Summary
rejecting as inadequate the defendant's "conclusory assertion that he did not receive the mailed papers"
Summary of this case from High Farms, LLC v. KingOpinion
June 17, 1985
Appeal from the Supreme Court, Kings County (Jones, J.).
Order affirmed, insofar as appealed from, with costs.
This action arose out of the death of the plaintiff's decedent following surgery at Beekman Downtown Hospital. Service upon defendant Moise was accomplished by delivery of the summons and complaint to an administrator at the hospital where Moise was a staff anesthesiologist, followed by mailing of a copy of the summons and complaint to his residence. Defendant Moise concedes he received the summons and complaint the day following delivery from a secretary in the Department of Anesthesiology but he argues that such service was not in compliance with CPLR 308 (2) because his "actual place of business" was the Department of Anesthesiology and not the hospital administration office. Since defendant had shown no actual place of business other than Beekman Downtown Hospital, service upon a person of suitable age and discretion in the administration office comported with the requirements of CPLR 308 (2). As all other conditions for delivery and mail service have been met, service upon appellant was proper. ( See, Chalk v. Catholic Med. Center, 58 A.D.2d 822.) The mere sworn denial of receipt of the copy of the summons and complaint at his home, without further probative facts, is insufficient to overcome the presumption of delivery which attaches to a properly mailed letter ( Engel v. Lichterman, 95 A.D.2d 536, affd 62 N.Y.2d 943). Since the appellant's affidavit raised no issue of fact in conflict with the affidavit of service, Special Term properly denied his motion without conducting a traverse hearing. Lazer, J.P., Gibbons, O'Connor and Brown, JJ., concur.