SHORT FORM ORDER

SUPREME COURT OF THE STATE OF NEW YORK

PRESENT: HON. DANIEL MARTIN

Acting Supreme Court Justice

TRIAL/LAS, PART 38
NASSAU COUNTY
RAYMOND SPENCER.
Plaintiff.
Sequence No.: 002
- against - Index No.: 020185/02

LAWRENCE J. KESSLER, D.O. and WINTHROP

UNIVERSITY HOSPITAL.

Defendants.

The following named papers have been read on this motion:

Paners Numbered
Notice of Motion and Affidavits Annexed X
Order to Show Cause and Affidavits Annexed
Answering Affidavits X
Replying Affidavits

Upon reading the papers submitted and due deliberation having been had herein,
defendant Lawrence J. Kessler, D.O.‘s motion for an order dismissing the complaint pursuant_to
CPLR $32 11 (a)(8) or alternatively setting the matter down for a traverse hearing is determined as
set forth below.

Plaintiff commenced the instant action based on treatment he received at defendant

Winthrop University Hospital and maintains causes of action for 1) medical malpractice; 2)
negligent hiring; and 3) lack of informed consent. Plaintiffs affidavit of service indicates that
the summons and complaint were allegedly served on defendant Lawrence J. Kessler, D.O.
personally on June 21,2003 pursuant to CPLR 308(l). Defendant Kessler moves to dismiss
herein on the basis that plaintiff failed to obtain personal jurisdiction over this defendant by
properly serving the summons and complaint on him.

In support of his motion, defendant Kessler and his wife both aver in their affidavits in
support of their motion that the summons and complaint was in fact delivered to Mrs. Kessler,
that Mr. Kessler was not “in the vicinity” of the service and that she later provided the summons
and complaint to Mr. Mr. Kessler. CPLR 308(l) requires personal service on the defendant.

Generally, an affidavit of service is primafacie proof that service was properly made.
Wick v. Halnern, 255 A.D.2d 438 (2nd Dep ’t 1998). Where, as here, defendant Kessler submits _
affidavits that conflict with the affidavit of service, plaintiff must prove jurisdiction by a
preponderance of the evidence at a traverse hearing. See, e.g., Long Island Savings Bank+ FSB v.
Meliso, 229 A.D.2d 478 (2nd Dep ’t 1996); Frankel v. Schillinq, 149 A.D.2d 469 (2nd Dep ’t 1989).

The court rejects plaintiffs position that the motion should be denied because defendant
Kessler ’s supporting affidavits are vague on the issue of where defendant Kessler was at the time
of the purported service. As set forth in their affidavits, both Mr. and Mrs. Kessler assert that the
summons and complaint were not served on defendant Kessler personally as set forth in the
affidavit of service, but delivered to someone other than the individual set forth in the affidavit of
service.

As the parties are in conflict as to whether the summons and complaint were served on
defendant Kessler, the court directs that a traverse hearing shall be held on December 1,2003 at
9:30 a.m. in Part 38.

Defendant Kessler shall file a note of issue on or before November 17,2003. A copy of
this order shall be served upon the County Clerk when the note of issue is filed. Failure to file a
note of issue or appear as directed shall be deemed an abandonment of the claim giving rise to
the traverse hearing. A copy of this order shall be served upon plaintiff by November 17,2003.

So Ordered. 1

Dated: November 3.2003

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