| Walker v Reyes |
| 2009 NY Slip Op 00678 [59 AD3d 436] |
| February 3, 2009 |
| Appellate Division, Second Department |
| Marianne Walker, Respondent, v Hector Reyes,Appellant. |
—[*1] Wayne A. Gavioli, P.C., Nanuet, N.Y., for respondent.
In an action to recover damages for wrongful death, the defendant appeals from an order ofthe Supreme Court, Rockland County (Garvey, J.), dated June 16, 2008, which denied his motionpursuant to CPLR 3211 (a) (8) to dismiss the action for lack of personal jurisdiction.
Ordered that the order is affirmed, with costs.
In support of his motion pursuant to CPLR 3211 (a) (8), the defendant argued that theSupreme Court lacked jurisdiction over his person because, even though the summons wasdelivered to his former residence in New York, he had moved to California prior to thecommencement of the action and was no longer a resident of New York. In opposition, theplaintiff presented an affidavit of service attesting that the defendant was served pursuant toCPLR 308 (2) by delivering the summons to a person of suitable age and discretion at his formerNew York residence and by mailing the summons to the same address, which address thedefendant allegedly had provided to the police at the time of the accident. In an affirmation infurther support of the defendant's motion, the defendant's attorney admitted that the defendantprovided the New York address to the police at the time of the accident and failed to notify theCommissioner of Motor Vehicles (hereinafter the Commissioner) of his change of residence. Thedefendant's attorney argued, however, that the defendant was not required to notify theCommissioner of his change of residence because he had moved out of the State of New York.
Vehicle and Traffic Law § 505 (5) requires that every motor vehicle licensee notifythe [*2]Commissioner of any change of residence within 10 daysafter the occurrence of the change. A party who fails to comply with this provision is estoppedfrom challenging the propriety of service made to the former address (see Candela v Johnson, 48 AD3d502, 503 [2008]; McCleaver v VanFossen, 276 AD2d 603, 604 [2000];Pumarejo-Garcia v McDonough, 242 AD2d 374 [1997]). Defense counsel'suncontroverted admissions (see Kuehne & Nagel v Baiden, 36 NY2d 539, 544 [1975];DiCamillo v City of New York, 245 AD2d 332, 333 [1997]) established that thedefendant was served at the New York address which he provided to the police at the time of theaccident and that, after the accident, he moved to the State of California without giving notice ofhis change of residence to the Commissioner (see Vehicle and Traffic Law § 505[5]). The defendant is, therefore, estopped from contesting the validity of service at his formeraddress (see Velasquez v Gallelli,44 AD3d 934, 935 [2007]; McCleaver v VanFossen, 276 AD2d at 604). Fisher,J.P., Covello, Balkin and Belen, JJ., concur.