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SHAWN PERSAUD, PLAINTIFF-RESPONDENT, v. TEANECK NURSING CENTER, INC., ET AL., DEFENDANTS, LONG TERM CARE CONSULTANTS, INC., ET AL., DEFENDANTS-APPELLANTS.

The IAS court erred in concluding that proper service of the summonses and complaints was effectuated upon defendants Defendants provided sufficient evidence in the form of sworn affidavits demonstrating that they were never served with process in accordance with CPLR 308 and 311. It is well settled that the plaintiff has the burden of proving, by a preponderance of the credible evidence, that service was properly made (see, McCray v Petrini, 212 A.D.2d 676). Plaintiff failed to sustain his burden of proof, since he failed to offer testimony or sworn affidavits from the process server or Frank Infante, the individual who plaintiff asserts was authorized to receive service. Without this evidence, plaintiff failed to prove that Infante was actually employed by or authorized to accept service on behalf of defendant Long Term Care Consultants, Inc. (see,Silverman v. St. Vincent's Hospital Medical Center, 197 A.D.2d 459). Further, plaintiff failed to demonstrate that defendant Michael Konig was ever served at his place of business or his residence, or that Mr. Konig received a copy of the summons and complaint in the mail. Strict compliance with all the service dictates of CPLR 308 and 311 is required in order to obtain jurisdiction (see, Olsen v. Haddad, M.D., 187 A.D.2d 375, lv denied, 81 N.Y.2d 707). Here, proof of such compliance is lacking

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT

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PERSAUD v. TEANECK NURSING CENTER
(Jan 24, 2002)