(Download) "Mary Kardanis v. Constantine P. Velis Et Al." by Supreme Court of New York ~ eBook PDF Kindle ePub Free
eBook details
- Title: Mary Kardanis v. Constantine P. Velis Et Al.
- Author : Supreme Court of New York
- Release Date : January 09, 1982
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 65 KB
Description
Order of the Supreme Court, Bronx County (Kent, J.), entered on September 23, 1981, which granted the motion by defendant Constantine P. Velis to confirm the report of the special referee and dismiss the complaint against him and denied plaintiffs cross motion to reject the report and strike the defendants defense of lack of jurisdiction, and judgment of the Supreme Court, Bronx County, entered on October 28, 1981, which dismissed the plaintiffs complaint against defendant Velis, are reversed, on the law and facts, with costs. Defendants motion to confirm the special referees report and dismiss the complaint is denied, and plaintiffs cross motion to reject the report and strike the defendants defense of lack of jurisdiction is granted. This case involves a claim by plaintiff Mary Kardanis against defendant Constantine P. Velis and another physician for medical malpractice which allegedly occurred in March and April of 1978. On March 5, 1980, well within the Statute of Limitations, plaintiff purportedly commenced an action against Dr. Velis by means of personal service of a summons and complaint, the validity of which is disputed by the parties. By verified answer dated April 23, 1980, the defendant asserted he had not been properly served and that, therefore, the court lacked jurisdiction in connection with the instant matter. According to the plaintiff, defendants counsel made repeated representations that the jurisdiction defense was "pro forma" and would be withdrawn but, as the period of limitations approached, Dr. Velis attorney reneged on the agreement and refused to sign a stipulation prepared by the plaintiffs attorney. Thereupon, pursuant to an order to show cause dated October 7, 1980, the plaintiff moved to dismiss the jurisdictional defense. On November 11, 1980, the court referred the issue of personal service to a special referee to hear and report with recommendation. At the hearing, which was conducted on January 27, 1981, the plaintiff called Steven Schwartz, a process server, who testified to having personally served Dr. Velis on March 5, 1980. In response, Dr. Velis denied having been personally served. The special referee issued his report on April 10, 1981, finding that the plaintiff had "failed to sustain the burden of proving that service was effected herein" and recommending that the motion to dismiss the defense of lack of jurisdiction be denied. Special Term, in an order entered on September 23, 1981, granted the defendants motion to confirm the report and dismiss the complaint and denied plaintiffs cross motion. Judgment was entered on October 28, 1981. In appealing the order and judgment of the court, plaintiff argues, in part, that the decision below was in error since the testimony of Steven Schwartz is clearly more credible than that of Dr. Velis. The rule is well settled that where questions of fact are submitted to a referee, it is the function of the referee to determine the issues presented, as well as to resolve conflicting testimony and matters of credibility, and generally courts will not disturb the findings of a referee "to the extent that the record substantiates his findings and they may reject findings not supported by the record" (Matter of Holy Spirit Assn. for Unification of World Christianity v Tax Comm. of City of N. Y., 81 A.D.2d 64, 71, revd on other grounds 55 N.Y.2d 512). In the instant situation, despite certain discrepancies in the process servers testimony, his account of the events of March 5, 1980 is inherently more probable than the version offered by Dr. Velis. In this respect, it should be noted that Steven Schwartz is a disinterested witness whereas the defendant is a party to the litigation. Although the process servers affidavit of service contained some inaccuracies regarding the defendants physical appearance, [90 A.D.2d 727 Page 728]