TARGEE STREET INT. MED. v. NATIONWIDE ASSOC

Citation Codes

Equivalent Citations

citation codes

Docket Number

2000-07989, 2000-11406, 2001-00883

Attorney(S)

Andrew C. Morganstern, Mineola, N.Y., for appellant. Howard M. File, Staten Island, N.Y., for Targee Street Internal Medicine Group P.C. Profit Sharing Trust, petitioner-respondent in Proceeding No. 1 and a respondent in Proceeding No. 2. John Z. Marangos, Staten Island, N.Y., for Parisi Enterprises, Inc., Profit Sharing Trust, a respondent in Proceeding No. 1 and petitioner-respondent in Proceeding No. 2.

Judges

Nancy E. Smith

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IN THE MATTER OF TARGEE STREET INTERNAL MEDICINE GROUP P.C. PROFIT SHARING TRUST, petitioner-respondent, v. NATIONWIDE ASSOCIATES, INC., appellant, PARISI ENTERPRISES, INC., PROFIT SHARING TRUST, ET AL., respondents. (PROCEEDING NO. 1) IN THE MATTER OF PARISI ENTERPRISES, INC., PROFIT SHARING TRUST, petitioner-respondent,

DECISION ORDER

ORDERED that the appeals from the orders dated July 11, 2000, and October 31, 2000, are dismissed; and it is further,

ORDERED that the judgment is affirmed; and it further,

ORDERED that one bill of costs is awarded to the petitioners-respondents.

The appeal from the order dated October 31, 2000, must be dismissed on the ground that no appeal lies from an order denying reargument.

The appeal from the intermediate order dated July 11, 2000, must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the proceedings (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from that order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

The branch of the appellant's cross motion which was to dismiss the petition to confirm so much of an arbitration award in favor of the petitioner in Proceeding No. 1 on the ground of lack of personal jurisdiction was properly denied, as service was effected in the manner specified in the order to show cause (see CPLR 403[d]).

The branch of the appellant's separate cross motion which was to dismiss Proceeding No. 2 on the ground of lack of personal jurisdiction was properly denied. Service upon the appellant was sufficient, as there was evidence that a person authorized to accept service (see CPLR 311[a][1]) resisted service. Further, attempts to complete service on an officer, director, manager, or agent of the appellant were diligent (cf. Bossuk v. Steinberg, 58 N.Y.2d 916; Austrian Lance Steward v. Rockefeller Center, 163 A.D.2d 125).

As the issue of punitive damages was raised for the first time in the motion to reargue and was not raised in the appellant's cross motions to dismiss, the issue of the propriety of the award of punitive damages is not properly before this court.

The appellant's contention that it was denied an opportunity to answer the petitions is also without merit. Leave to submit an answer following denial of a motion to dismiss a special proceeding is discretionary (see CPLR 404[a]), and the Supreme Court providently exercised its discretion (see Matter of Dodge, 25 N.Y.2d 273, 276-277; Matter of Foley, 140 A.D.2d 892, 893).

The appellant's remaining contentions are without merit.

SMITH, J.P., O'BRIEN, McGINITY and CRANE, JJ., concur.

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