CPLR § 308(5) Impracticable

In an action, inter alia, for the appointment of a receiver, the
defendants Baruch Mappa and Martin Rosenberg appeal, as limited by
their brief, from so much of an order of the Supreme Court, Kings
County (Harkavy, J.), dated May 4, 2007, as, upon granting the
application of the defendant Antonia C. Novello, as Commissioner of the
New York State Department of Health, in effect, to join this action for
trial with a related action entitled State of New York v Baruch Mappa and Martin Rosenberg,
pending in the same court under Index No. 10658/07, permitted the State
of New York, as the plaintiff in the related action, to serve the
summons and complaint in the related action upon their attorney
pursuant to CPLR 308(5).

ORDERED that on the Court's own motion, the notice of appeal
from the order is treated as an application for leave to appeal, and
leave to appeal is granted (see CPLR 5701[c]); and it is further,

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs.

The respondents failed to establish that service on the appellants pursuant to CPLR 308(1), (2), [*2]and (4) was "impracticable" so as to permit service under CPLR 308(5) (see Staton v Omwukeme, 277 AD2d 443; Smith v Waters, 232 AD2d 545; Coffey v Russo, 231 AD2d 546; Porter v Porter, 227 AD2d 538; Markoff v South Nassau Community Hosp., 91 AD2d 1064, affd
61 NY2d 283). Accordingly, the Supreme Court improvidently exercised
its discretion in permitting service of the summons and complaint in a
related action upon the appellants' attorney pursuant to CPLR 308(5).

The respondents' remaining contention that the appellants
waived their objection to service pursuant to CPLR 308(5), is not
properly before this Court and, in any event, is without merit.