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NATIONWIDE MUT. INS. CO. v. KAUFMAN

June 26, 1995

NATIONWIDE MUTUAL INSURANCE COMPANY and NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Plaintiffs,
v.
STEVEN KAUFMAN, MYRON KAUFMAN, THE ESTATE OF HAROLD BASSER, and BASSER-KAUFMAN, INC., Defendants.



The opinion of the court was delivered by: POHORELSKY

REPORT AND RECOMMENDATION and MEMORANDUM ORDER

 POHORELSKY, Magistrate Judge.

 This case is before the court on defendants' application to dismiss this action against all defendants for lack of personal jurisdiction, and on plaintiffs' motion to amend the caption to add a party's name. A factual hearing was held on April 17, 1995 concerning the jurisdictional issue, followed by the submission of memoranda of law. *fn1"

 BACKGROUND

 In this breach of contract action, plaintiffs seek payment of insurance premiums allegedly owed by the defendants for policies issued by plaintiffs. As one of their defenses, defendants have challenged personal jurisdiction on the ground that none of the defendants were properly served. Plaintiffs for their part contend that proper service was made on Steven Kaufman, Myron L. Kaufman, Basser-Kaufman Inc., and on a partnership known as Basser-Kaufman Co. *fn2"

 The evidence at the hearing established that on November 18, 1994, John Lewis, a process server with some 18 years of experience, delivered copies of summonses and the complaint at an office building at 335 Central Avenue in Lawrence, New York. Mr. Lewis testified that a sign at the building bore the name of an entity known as "Basser-Kaufman," and the parties have stipulated that the building was, at the time of service, the actual place of business of the individual defendants and of the entities Basser-Kaufman, Inc. and Basser-Kaufman Co. Mr. Lewis entered the building and was met by a receptionist, who directed him to a man later identified as Kevin McCabe, the comptroller of Basser-Kaufman, Inc. Mr. Lewis gave Mr. McCabe the copies of the summonses and complaint for Myron Kaufman, Steven Kaufman, Basser-Kaufman Inc., and the Estate of Harold Basser.

 DISCUSSION

 Service on Defendants Myron Kaufman and Steven Kaufman

 Plaintiffs assert that proper service was made on the individual defendants pursuant to Rule 4(e)(1) of the Federal Rules of Civil Procedure, which provides that service may be made in accordance with the law of the state in which the district court is located. Rule 308.2 of New York's Civil Practice Law provides that service on an individual may be made by delivering the summons to a person of suitable age and discretion at the defendant's actual place of business and mailing a copy of the summons to the defendant's actual place of business. *fn3" Defendants do not dispute that 335 Central Avenue is the actual place of business of Myron and Steven Kaufman, nor do they contest the plaintiffs' assertion that a proper mailing was made. Rather they argue that plaintiffs have not identified with sufficient particularity the individual to whom the papers were delivered, and have not met their burden of establishing that the individual was a person of suitable age and discretion.

 The only case cited by either party on the "suitable age and discretion" issue is City of New York v. Chemical Bank, 122 Misc. 2d 104, 470 N.Y.S.2d 280, 285 (Sup. Ct. N.Y. Cty. 1983). According to the court in City of New York, "The person to whom delivery is made must objectively be of sufficient maturity, understanding, and responsibility under the circumstances so as to be reasonably likely to convey the summons to the defendant." Using this standard, courts in New York have routinely held that service upon an adult co-worker or employee is proper. See, e.g., Oxhandler v. Sekhar, 88 A.D.2d 817, 451 N.Y.S.2d 100 (1st Dep't 1982); Matter of Betzler v. Carey, 109 Misc. 2d 881, 441 N.Y.S.2d 206, aff'd, 91 A.D.2d 1116, 441 N.Y.S.2d 206 (N.Y. Sup. Ct. 1981).

 Defendants' argument on the identification issue is frivolous. They point out that the affidavits of service list the person to whom the summonses and complaint were delivered as "Kevin Cabe," and provide a description of "Cabe" which indicates that he was wearing glasses. At the hearing, Kevin McCabe was identified as the individual who received the summons, and McCabe, who also testified, conceded that point. McCabe also conceded that the physical description provided in the affidavits met his own description except that he wore glasses only when he was driving, not while he was at work.

 Defendants do not cite a single case that addresses the issue of proper physical identification. Even putting aside McCabe's concession, the accuracy of the general physical description provided in the affidavits of Mr. Lewis, and the similarity of the names "Cabe" and "McCabe," left no doubt that McCabe and "Cabe" were one and ...


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