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Fred Shore Beach Club, Inc. v. Palmieri

Supreme Court of New York, Second Department

January 15, 2014

Fred Shore Beach Club, Inc., et al., respondents,
v.
Paul Palmieri, et al., appellants. Index No. 4074/10

Judith N. Berger, Babylon, N.Y., for appellants.

Michael B. Schulman & Associates, P.C., Melville, N.Y. (David R. Weiner of counsel), for respondents.

PETER B. SKELOS, J.P., RUTH C. BALKIN, PLUMMER E. LOTT, SYLVIA O. HINDS-RADIX, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for abuse of process, the defendants appeal from an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated March 16, 2011, which, after a hearing to determine the validity of service of process, denied their motion pursuant to CPLR 3211(a)(8) to dismiss the complaint on the ground of lack of personal jurisdiction.

ORDERED that the order is affirmed, with costs.

The plaintiffs commenced this action against the defendants to recover damages, inter alia, for abuse of process. The defendants moved pursuant to CPLR 3211(a)(8) to dismiss the complaint on the ground of lack of personal jurisdiction, arguing that neither of the two defendants was properly served. Following a hearing at which the process server testified for the plaintiffs, and an employee of one of the defendants testified for the defendants, the Supreme Court found that service had been properly made on the defendants, and denied their motion.

In reviewing a determination made after a hearing, this Court's authority is as broad as the hearing court's authority, and this Court may render the judgment it finds warranted by the facts, taking into account that in a close case, the hearing court had the advantage of seeing the witnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 N.Y.2d 492, 499; Lopez v DePietro, 82 A.D.3d 715, 716). Here, the hearing court's determination that the defendants were properly served was supported by the credible evidence adduced at the hearing (see Lopez v DePietro, 82 A.D.3d at 716; American Home Mtge. v Villaflor, 80 A.D.3d 637), and we discern no basis for disturbing that determination.

The defendants' remaining contention is without merit.

SKELOS, J.P., BALKIN, LOTT and HINDS-RADIX, JJ., concur.


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