Opinion
February 2, 1990
Appeal from the Supreme Court, Monroe County, Wesley, J.
Present — Denman, J.P., Boomer, Green, Lawton and Davis, JJ.
Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: The complaint must be dismissed because plaintiff did not properly serve the summons pursuant to the nail-and-mail provisions of CPLR 308 (4). It is undisputed that, at the time the process server affixed the summons to the door of 56 Fairview Court, Rochester, defendant was residing at another address. CPLR 308 (4) provides that, in effecting service by mail, the summons shall be affixed to the door "of either the actual place of business, dwelling place or usual place of abode". At the time the summons and complaint were attached to the door at 56 Fairview Court, "that address was not and could no longer be considered defendant's dwelling place" (Feinstein v Bergner, 48 N.Y.2d 234, 238). Plaintiff argues that the facts in Feinstein distinguish it from the present case. None of the facts referred to by plaintiff, however, were material to the court's holding that the address at which the summons is affixed cannot be considered to be the defendant's dwelling place or usual place of abode when the defendant has moved from that address and established residence elsewhere.