Musasama v. Castle

Civil Practice

New York Law Journal


Justice Robert McDonald

Defendants sought dismissal of plaintiff's complaint arguing failure to obtain personal jurisdiction over them. Alternatively, they sought an order staying the matter pending a hearing of the motion and placing the action on the military calendar. The underlying action was for personal injuries allegedly sustained by plaintiff in an automobile accident. Defendants claimed they never received process of service personally. Castle claimed he was on active military service and was not served personally, nor did he receive a copy of the summons and complaint in the mail. The court found the defendants' affidavits containing conclusory denials of receipt of the summons and complaint were insufficient to rebut the presumption of proper service. It found plaintiff properly, and timely, served defendants, thus dismissal for lack of personal jurisdiction was denied. Further, it found as Castle was not personally involved in the accident, his only role at trial would be to confirm permissive use by operator Kamara. Hence, his active military service would not materially affect his ability to defend the action. Thus, the court ruled a stay was unnecessary due to Castle's military status, denying his application for a stay.

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