Kleinplatz v. Burstein , 974 N.Y.S.2d 783 ( 2013 )

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 2, 2013, which, after directing a traverse hearing in this action alleging legal malpractice, dismissed the complaint due to improper service, unanimously affirmed, without costs.

Plaintiff commenced this action by service of a summons with notice on October 13, 2008. On October 15, 2008, defendant’s counsel served on plaintiff a notice of appearance and demand for complaint. Defendant averred that the complaint was never received following the demand. Plaintiff contended that he served the complaint on October 14, 2008, sending it via first-class mail to defendant’s counsel, but he failed to submit clear evidence indicating that such mailing occurred. Under these circumstances, dismissal of the complaint was proper (see Forty Cent. Park S., Inc. v Kiss, 40 AD3d 236 [1st Dept 2007]).

We have considered plaintiffs remaining arguments and find them unavailing. Concur — Tom, J.E, Mazzarelli, Freedman, Richter and Feinman, JJ.