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NATIONWIDE MUT. INS. CO. v. KAUFMAN

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK


August 9, 1995

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

The opinion of the court was delivered by: PLATT

ORDER

 PLATT, District Judge.

 On June 26, 1995, Magistrate Judge Viktor V. Pohorelsky issued a Report and Recommendation in which he determined that the defendants herein were properly served and that, as a result, this Court has personal jurisdiction over them. Because Magistrate Judge Pohorelsky's findings are in accordance with applicable law, his Report and Recommendation is hereby affirmed.

 BACKGROUND

 The defendants moved this Court to dismiss the action against them for lack of personal jurisdiction on the grounds that they were not properly served with the complaint and summons. On April 17, 1995, Magistrate Judge Pohorelsky held a traverse hearing with respect to the issue of service. The evidence at that hearing established that, on November 18, 1994, a process server with eighteen (18) years of experience in that capacity, delivered copies of the summons and complaint to the business premises of defendant Basser-Kaufman, Inc. These are also the business premises of the individual defendants, Myron and Steven Kaufman.

 The evidence at the hearing also demonstrated that the plaintiffs' process server gave the legal documents to Kevin McCabe, the Comptroller of Basser-Kaufman, Inc. The defendants contended, however, that: (1) the plaintiffs did not identify with sufficient particularity the individual to whom the papers were delivered; and (2) Mr. McCabe was not a person of suitable age and discretion to accept service under Rule 308.2 of New York's Civil Practice Law.

 At the conclusion of the hearing, Magistrate Judge Pohorelsky determined that the recipient of the service was, indeed, Mr. McCabe and that the defendants' argument on the issue of identification was "frivolous." Report and Recommendation (June 26, 1995) at 4. Additionally, Magistrate Pohorelsky determined that the process server told McCabe, who is an adult co-worker of defendants Myron and Steven Kaufman, that he had papers to serve on Basser-Kaufman, Inc. and McCabe accepted those papers. Thus, Magistrate Pohorelsky concluded that the process server reasonably believed McCabe to be a "managing agent" of Basser-Kaufman, Inc. within the meaning of Section 311 of New York's Civil Practice Law.

 In light of these findings, Magistrate Judge Pohorelsky issued a Report and Recommendation on June 26, 1995, wherein he determined that the defendants were properly served and that this Court has jurisdiction over them. On June 30, 1995, the defendants objected to this Report and Recommendation by arguing that the plaintiffs did not demonstrate that McCabe had the authority to bind the corporate defendant. Thus, the defendants contended that the Court should not deem McCabe to be a managing agent.

 This Court agrees with Magistrate Judge Pohorelsky that McCabe need not actually have been a managing agent to make the service proper. *fn1" Rather, "where a process server is led to believe, by employees of the defendant corporation, that he or she is serving papers upon a managing agent of that corporation or other person authorized to accept service, the service will be deemed valid if that belief is reasonable." Report and Recommendation at 6 (citing Gammon v. Advanced Fertility Servs., P.C., 189 A.D.2d 561, 592 N.Y.S.2d 23, 23 (1st Dept. 1993)).

 In this case, the process server approached a building which bore the defendants' names. When he informed the receptionist therein that he had legal papers to serve upon the defendants, the receptionist summoned McCabe who accepted the papers. Thus, this Court agrees with Magistrate Pohorelsky that the process server's belief that McCabe was either a managing agent or was authorized to accept service for Basser-Kaufman, Inc. was reasonable under the circumstances.

 CONCLUSION

 For the reasons stated above, Magistrate Judge Pohorelsky's Report and Recommendation is hereby affirmed.

 SO ORDERED.

 Thomas C. Platt

 District Judge, U.S.D.C.

 Dated: Uniondale, New York

 August 9, 1995


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