De Curzio v. T.S.S. Seedman's, Inc.

In an action to recover damages for false arrest and imprisonment and malicious prosecution, defendants appeal from an order of the Supreme Court, Suffolk County (Orgera, J.), dated May 8, 1984, which denied their motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) and (8) for violation of the applicable Statute of Limitations and lack of in personam jurisdiction.

Order modified, on the law and the facts, by granting the motion to the extent that the complaint is dismissed as against defendant Di Masi, and the action as against the remaining defendant is severed. As so modified, order affirmed, without costs or disbursements.

Since plaintiff has never claimed to have effected service upon or acquired personal jurisdiction over defendant Di Masi, the complaint insofar as it is asserted against him should have been dismissed. However, Special Term correctly denied dismissal with respect to the corporate defendant in the absence of any affidavit by someone with personal knowledge of the facts, denying the process server’s version of service. Mollen, P. J., Brown, Niehoff and Eiber, JJ., concur.