DiSalvo v. Ordway

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Floyd, J.), entered February 17, 1993, which, after a hearing, dismissed the complaint insofar as it is asserted against the defendant Craig Ordway on the ground of lack of personal jurisdiction. Ordered that the judgment is affirmed, with costs. It is well settled that issues of credibility are properly determined by the hearing court, whose decision will not be disturbed on appeal if it is supported by a fair interpretation of the evidence (see, Nagib v Tolette-Velcek, 133 AD2d 72, 73; Vega v City of New York, 194 AD2d 537). A review of the record reveals that there is more than sufficient evidence to support the hearing court’s determination rejecting the testimony of the process server and crediting the testimony of the defendant Craig Ordway’s witnesses. Accordingly, it is clear that the plaintiffs failed to meet their burden of proving by a preponderance of the evidence that service of the summons and complaint was proper (see, Frankel v Schilling, 149 AD2d 657, 659). Thompson, J. P., Miller, O’Brien, Santucci and Joy, JJ., concur.