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Messina v. St. Paul's High School

148 A.D.2d 507 Court N.Y. App. Div. Decision date 1989-03-13 English

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p. 507
Salvatore Messina, Appellant, v St. Paul’s High School, Defendant, and John Williams, Respondent.

In a negligence action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Collins, J.), entered October 6, 1987, which, after a hearing, denied his motion to strike the affirmative defense of lack of personal jurisdiction asserted in the answer of the defendant Williams and granted the cross motion of that defendant to dismiss the complaint as against him.

Ordered that the order is affirmed, with costs.

The evidence was sufficient to support the hearing court’s determination that service was not made at the respondent’s "dwelling place or usual place of abode” pursuant to CPLR 308 (2) (see, Feinstein v Bergner, 48 NY2d 234 ; Chiari v D’Angelo, 123 AD2d 655 ).

The plaintiff did not contend before the hearing court that

p. 508
the respondent should be estopped from raising the defect in service as a defense. Therefore, we may not consider this issue for the first time on appeal (see, Cadlett v St. John’s Episcopal Hosp., 134 AD2d 394 ). We do note however, that the plaintiff did not establish that he relied on any affirmative misrepresentations by the defendant Williams which were calculated to prevent him from discovering his new address (see, Feinstein v Bergner, supra; Chiari v D’Angelo, supra; cf., Treutlein v Gutierrez, 129 AD2d 791 ). Mangano, J. P., Bracken, Spatt and Balletta, JJ., concur.

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