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Maine v. Jay Street Realty Associates3/8/2001
The issue presented on this motion by defendant to dismiss for lack of jurisdiction is whether service upon a limited partnership may be made by delivery of process to a person of suitable age and discretion at the residence of a general partner. While the answer to the question would clearly be in the affirmative if the defendant were a general partnership [see, Bell v. Bell, Kalnick, Klee & Green, 246 A.D.2d 442 (1st Dept. 1998); Foy v. 1120 Avenue of the Americas Associates, 223 A.D.2d 232 (2d Dept 1996)], the 1999 amendment adding CPLR 310-a dealing with service upon a limited partnership requires an examination of that statute as well as the statutory history of the means by which a court may obtain jurisdiction over a partnership.
Facts
Plaintiffs effected service in this personal injury action by delivery of process to the doorman of the apartment building in which the general partner (Samuel J. Jemal) of the defendant limited partnership resided. While the complaint alleges alternative allegations with respect to the status of the defendant, plaintiffs' papers assert that defendant is a limited partnership, attaching thereto a copy of the deed to the building in which the subject accident occurred showing transfer of ownership thereof to the defendant limited partnership. Also attached to plaintiffs' papers was a copy of the certificate of limited partnership showing Mr. Jemal as the general partner. Curiously, defendant's counsel maintained at oral argument that the owning entity was a general partnership. However, since plaintiffs stated that they were suing the defendant as a limited partnership, defendant's counsel acknowledged that such entity was the client the firm was representing in this action.
The affidavit of Mr. Jemal does not dispute that service was made upon the doorman of the building in which he resides, nor does it challenge the assertion that the doorman denied plaintiffs' process server access to his apartment. Under such circumstances, the service would provide jurisdiction over an individual defendant [see, F. I. DuPont, Glore Forgan & Co. v. Chen, 41 N.Y.2d 794 (1977)]. However, among other claims, defendant asserts that jurisdiction was not obtained as against it because the service was made at Ms. Jemal's residence rather than at the office of the partnership.
Discussion
Prior to the 1991 addition to CPLR 310, the sole statutory provision dealing with service upon a partnership was the provision thereof which stated that " ersonal service upon persons conducting a business as a partnership may be made by personally serving the summons. . .upon any one of them". It had been held that said section authorized personal service upon a partnership by service pursuant to CPLR 308 (2) [see, Searing v. Anand, 127 A.D.2d 582 (2d Dept.1987); Hickey v. Naruth Realty Corp., 71 A.D.2d 668 (2d Dept. 1979)].
However, in Cooney v. East Nassau Medical Group, 136 A.D.2d 392 (1st Dept. 1988), it was held that service upon a partnership's executive secretary, without service upon a partner, was ineffective to give the court jurisdiction over the partnership. As an apparent result of this holding, in 1991 the legislature amended CPLR 310 to add to the above quoted provision [designated paragraph "(a)"] a new paragraph "(b)" authorizing personal service upon a partnership "by delivering the summons to the managing or general agent of the partnership or the person in charge of the office of the partnership. . .at such office". The intent of the amendment was to allow service in a manner similar to that by which a court obtains jurisdiction over a corporation.
In his 1991 commentary in McKinney's Co
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