Santangelo, Inc. v. Brown

Full title: MATT SANTANGELO, INC., Appellant, v. LEONARD D. BROWN, JR., Respondent

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 18, 1994

206 A.D.2d 463 (N.Y. App. Div. 1994)

614 N.Y.S.2d 933

Opinion

July 18, 1994

Appeal from the Supreme Court, Suffolk County (Gowan, J.).

Ordered that the order is affirmed, with costs.

Contrary to the plaintiff's contention, the Supreme Court properly determined that service upon the defendant was defective because the substituted method of service was not effected at the defendant's actual dwelling place or usual place of abode (see, CPLR 308; Burkhardt v. Cuccuzza, 81 A.D.2d 821, 823). Further, since the record clearly indicates that the defendant did not engage in conduct calculated to prevent the plaintiff from learning his usual place of abode, he is not estopped from raising the defect in service as a jurisdictional defense (see, Feinstein v. Bergner, 48 N.Y.2d 234, 241; Esposito v. Billings, 103 A.D.2d 956, 957). Sullivan, J.P., Lawrence, Pizzuto and Friedmann, JJ., concur.