Grasso v. Matarazzo , 733 N.Y.S.2d 100 ( 2001 )

—In an action to recover damages for wrongful eviction, the defendant appeals from an order of the Supreme Court, Kings County (I. Aronin, J.), entered July 13, 2000, which denied his motion to dismiss the complaint.

Ordered that the order is affirmed, with costs.

The defendant moved, inter alia, to dismiss the complaint on the ground that it is time-barred by the applicable one-year Statute of Limitations. The uncontradicted medical testimony established that the plaintiff suffers from chronic paranoid schizophrenia. Furthermore, he is unable to protect his legal rights because of an overall inability to function in society (see, McCarthy v Volkswagen of Am., 55 NY2d 543, 548). Therefore, the plaintiff is entitled to the tolling provision of CPLR 208.

The defendant further seeks dismissal of the complaint based on improper service of the summons. However, service of process on an employee of the defendant who may be reasonably expected to convey the papers to the intended party establishes an all but conclusive presumption of valid service (see, Charnin v Cogan, 250 AD2d 513). Here, service was made upon the defendant’s son, who was also an employee, at his actual place of business. A hearing was held, after which it was determined that service was proper (see, Brooklyn Union Gas Co. v Arrao, 100 AD2d 949).

The defendant’s remaining contention is without merit. O’Brien, J. P., McGinity, H. Miller and Adams, JJ., concur.