Opinion
December 26, 1972
In a negligence action to recover damages for personal injuries, etc., defendant appeals from an order of the Supreme Court, Queens County, dated August 23, 1971, which granted plaintiffs' motion to strike a defense of lack of jurisdiction of defendant's person, contained in his answer, and denied defendant's cross motion to dismiss the complaint on the ground of said defense. Order reversed, on the law, with $10 costs and disbursements; plaintiffs' motion denied; and defendant's motion granted. Where a process server's affidavit falsely alleges personal service of the summons on the defendant and, in fact, the summons was received by the defendant's estranged wife and subsequently mailed by her to the defendant at his own residence, we hold that personal service pursuant to CPLR 308 has not been effected (see McDonald v. Ames Supply Co., 22 N.Y.2d 111). Latham, Acting P.J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.