Bulterman v. Richmond Racquet Club

In a negligence action to recover damages for personal injuries, defendant Conhagen appeals from an order of the Supreme Court, Richmond County (Rubin, J.), dated June 30,1980, which denied his motion for summary judgment dismissing the complaint as against him. Order reversed, on the law, with $50 costs and disbursements, motion granted and complaint dismissed as against defendant Conhagen. The record reveals that the plaintiff has failed to raise or establish a triable issue of fact regarding whether defendant Conhagen may be estopped from asserting the affirmative defenses of lack of personal jurisdiction and the Statute of Limitations (cf. Fotochrome, Inc. v American Ins. Co., 26 AD2d 634, affd 23 NY2d 889; Adelman v Friedman, 80 Mise 2d 946, affd 83 Mise 2d 802). As defendant Conhagen was never properly served (CPLR 308, 313) jurisdiction over him was never obtained and the complaint must therefore be dismissed as against him. Mangano, J. P., Gulotta, Thompson and Brown, JJ., concur.