Giordano v. McMurtry , 90 A.D.2d 451 ( 1982 )

Order, Supreme Court, New York County (Ryp, J.), entered July 31, 1981, which granted defendant-appellant McMurtry’s motion to reargue but adhered to the original decision, dated September 18, 1980, with minor modifications, reversed, on the law, and the motion to dismiss the complaint granted, without costs. Appeal from order, Supreme Court, New York County (Ryp, J.), entered October 30, 1980, which amended an order filed October 16, 1980 holding in abeyance McMurtry’s motion to confirm the referee’s report and dismiss the complaint and directing that a further traverse hearing be held, unanimously dismissed as superseded by the appeal from the aforesaid order entered July 31,1981, without costs. This is a medical malpractice action to recover for the death of plaintiff’s decedent, which was previously remanded by this court (72 AD2d 507) for a hearing to determine the circumstances in which the alleged service of process was made. The holding in the companion case of Giordano v McMurtry (79 AD2d 548, affd 53 NY2d 962), is dispositive of this appeal. Special Term has no power to direct service pursuant to CPLR 308 (subd 5) without a showing that service pursuant to CPLR 308 (subds 1, 2 or 4) was attempted or was impracticable. Plaintiffs have made no such showing. Concur — Sullivan, Carro and Silverman, JJ.