Shapiro v. Messing

In an action, inter alia, to recover damages for libel, slander and interference with business relations, the plaintiff appeals from an order of the Supreme Court, Nassau County (Roberto, J.), entered August 1, 1989, which, after a hearing, denied that branch of his motion which was to dismiss the defendant Samuel Messing’s sixth affirmative defense, alleging lack of personal jurisdiction, and dismissed the complaint as against the defendant Samuel Messing. Ordered that the order is affirmed, with costs. Contrary to the plaintiff’s contention, the credible evidence in the record amply supports the hearing court’s conclusion that personal service of the summons and complaint was not effected upon the defendant Samuel Messing in accordance with CPLR 308 (1). Furthermore, the mere fact that Messing received prompt actual notice of the action is of no moment in determining whether he was properly served (see, Maccia v Russo, 67 NY2d 592; Marine Midland Realty Credit Corp. v Welbilt Corp., 145 AD2d 84). Brown, J. P., Sullivan, Eiber and O’Brien, JJ., concur.