Opinion
K1-2004-881.
Decided February 14, 2005.
This is defendant's motion for an order dismissing plaintiff's complaint pursuant to Rule 3211. The defendant raised in their answer improper service as an affirmative defense and have now moved pursuant to Rule 3211(e) within 60 days after serving the answer for judgment dismissing the complaint. Although denominated as a motion pursuant to CPLR 3212 the court treats it as a 3211 motion to dismiss.
The defendant's answer raises the service defense as the sixth affirmative defense. The defendant also provides to the court the sworn affidavit of the defendant. In opposition to the motion the plaintiff has provided an attorney's sworn affidavit and pertinently, the affidavit of Mark B. Winsick, the Process Server, sworn to on January 13, 2005.
It is not disputed the plaintiff and defendant were involved in an auto accident on the 18th day of December, 2001. The defendant's address on the police accident report and his actual address at the time was 36 Regent Street, Jamestown, New York 14701. It is also not disputed the defendant received a copy of the summons and complaint.
The defendant's affidavit establishes he moved from the Regent Street address in October 2003 approximately 10 months prior to the attempted service. The defendant does list the various entities he notified of his change of address. The affidavit of the Defendant is silent on the issue of notification to the Department of Motor Vehicles.
Plaintiff's counsel submits in opposition an affidavit which indicates a search made by him in January of 2005 to determine the defendant's address. The report attached to the affidavit as Exhibit C establishes it was printed on January 13, 2005. While it does establish the defendant's address was not changed with the New York State Department of Motor Vehicles, the search was done only after the motion had been made and was done too late to save plaintiff's case for the reason set forth below.
In McNeil v. Tomlin, 82 AD2d 825(2nd Dept. 1981) the defendant was estopped from contesting the validity of the service upon her at her parent's home since that was the address the Commissioner of Motor Vehicles had for her and she had not apprised them of her change of address. In the instant action, the affidavit of the process server, Mark B. Winsick, does not establish any inquiry with the Department of Motor Vehicles. The affidavit of the process server does establish an inquiry to the United States Postal Service and at Paragraph 6 Mr. Winsick states "It was determined that the last known address for Todd A. Peterson was 36 Regent Street, Jamestown, New York, 14701". The process server concedes the address was the "last known address". The process server's affidavit does not include a receipt from the United States Postal Service. The defendant's affidavit establishes he changed his address to a P.O. Box with the Postal Service.
Pursuant to CPLR 308(4) "Where service under paragraphs 1 and 2 cannot be made with due diligence" service may be made "by affixing a summons to the door of either the actual . . . dwelling place or ususal place of abode" and by mailing the summons to such person at his last known residence. While the mailing can go to a last known address the affixing must be to an actual dwelling place or usual place of abode.
The summons in this case was not affixed to the actual dwelling place of the defendant nor was it his usual place of abode at the time of service.
The "due diligence" exercised by process server Winsick in an attempt to use substituted service pursuant to Section 308(4) establishes only a search at the United States Postal Service to locate the "last known address". It does not establish any attempt by the process server to speak with neighbors, check telephone listings or check with the Department of Motor Vehicles. (See Kurlander v. A Big Stam Corp. 267 AD2d 209 (2nd Dept. 1999) The process server made 3 attempts to serve the defendant at a residence which he knew to be the last known address for Todd A. Peterson. (Affidavit of Mark B. Winsick).
Although the plaintiff does not clearly make an estoppel argument in the motion papers it is implied in the attempt to argue the Department of Motor Vehicles was not notified of the new address. That issue is moot in this case since neither the plaintiff nor the plaintiff's process server did a check or relied on the Department of Motor Vehicles before attempting nail and mail service.
In dismissing the complaint this court relies on the decision of Feinstein vs Bergner 48 N.Y.2nd 234 (1979). In Feinstein despite defendant's receipt of process the Court of Appeals held service was defective since the statute requires the "nail" service at either the actual place of business or actual dwelling place or ususal place of abode which was not done in Feinstein and which the court finds has not been done in the instant case.
The Fourth Department in Seiler v. Riccis Towing Service 227 AD2d 920(4th Dept. 1996) in a similar situation dismissed the complaint noting "A defendant is not estopped from raising defective service as a defense where he did not engage in conduct calculated to prevent plaintiff from learning his new address, even where he neglected to contact authorities to inform them of his change of address'." (Citations omitted). The only evidence in the record before the court to establish the defendant had not advised the Commissioner of Motor Vehicles of his new address is a document created by plaintiff's attorney in response to the motion and not relied upon by the process server prior to attempting substituted service. Any equitable estoppel argument is not supported by the evidence.
The evidence establishes substituted service was not properly made pursuant to CPLR Section 308(4) and the court does not have jurisdiction of the defendant because of defective service.
This is the decision and order of the court.
Plaintiff's complaint is dismissed.