## Facts

- New York plaintiffs sought damages for personal injuries from an automobile collision occurring in New Jersey.
- The defendants were New Jersey residents.
- Plaintiffs commenced suit in New York and attempted to obtain personal jurisdiction through in-state service while defendants were temporarily in New York.
- Defendants were allegedly induced to enter New York by a purported promotional offer of complimentary Broadway tickets tied to giving opinions about a new curtain time.
- After the performance, defendants were served with a summons in the theater by a person who had been seated behind them.
- The promised promotional activity was not carried out (no questionnaire or follow-up consistent with the stated purpose).
- The record lacked an affidavit from the individual who effectuated service describing the circumstances of service.
- Defendants moved to vacate service on the ground that it was procured by deception and was inadequately supported by proof.

## Issues

1. Whether personal service on nonresident defendants is valid when the defendants’ presence in New York was procured by deceptive inducement designed to facilitate service.
2. Whether service should be vacated where the circumstances of service are not supported by competent proof, including the absence of an affidavit from the person who made service.

## Decision

- The Appellate Division reversed the order insofar as appealed from, on the law and on the facts.
- The court granted defendants’ motion to vacate service of the summons.
- Costs and disbursements were awarded to defendants.

## Legal Principles

- Personal jurisdiction may not be founded on in-state service when the defendant’s presence in the state was obtained through fraud, deception, or similar contrivance aimed at enabling service.
- The proponent of jurisdiction must provide competent proof supporting the validity and circumstances of service; materially deficient proof may warrant vacatur of service.
- Appellate reversal “on the law and on the facts” may rest on both improper application of service/jurisdiction rules and an insufficient evidentiary record establishing valid service.

## Conclusion

The court set aside service because the nonresident defendants’ New York presence was allegedly manufactured through deception to accomplish service, and the plaintiffs failed to support the service with adequate proof, defeating personal jurisdiction on that basis.


Terlizzi v. Brodie, 38 A.D.2d 762, 329 N.Y.S.2d 589 (App. Div. 2d Dep’t 1972)