| Kalamadeen v Singh |
| 2009 NY Slip Op 05296 [63 AD3d 1007] |
| June 23, 2009 |
| Appellate Division, Second Department |
| Shafeek Kalamadeen, Appellant, v Arvinderpal Singh,Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, by permission,from an order of the Appellate Term for the Second, Eleventh, and Thirteenth Judicial Districts,dated January 24, 2008, which affirmed an order of the Civil Court of the City of New York,Queens County (Dufficy, J.), dated October 5, 2005, which, after a hearing to determine thevalidity of service of process, granted the defendant's motion to vacate a default judgmententered against him.
Ordered that the order dated January 24, 2008, is reversed, the order of the Civil Court of theCity of New York, Queens County, is vacated, the defendant's motion to vacate the defaultjudgment entered against him is denied, and the judgment in favor of the plaintiff is reinstated.
The plaintiff and the defendant allegedly were involved in an automobile accident onFebruary 26, 2001. The police accident report lists two different addresses for the defendant, onefrom his driver's license and a different one from his vehicle registration. The plaintiffcommenced this action in February 2004, and contends that he served the defendant pursuant toCPLR 308 (4) at the defendant's address then on record at the Department of Motor Vehicles(hereinafter the DMV). This address was different from the two addresses on the police accidentreport. The defendant did not appear in the action and a judgment was entered against him onAugust 18, 2004, upon his default.
Upon discovering the judgment against him, the defendant moved to vacate it, contendingthat at the time service allegedly was made he did not live at the address where process wasaffixed and mailed, he did not receive process, and that the subject accident was the plaintiff'sfault. A hearing to determine the validity of service of process was ordered. At the hearing, theprocess server admitted that on the fourth occasion that he attempted to personally deliver thesummons and complaint to the defendant at the defendant's address then on record with theDMV, he was told by the owner of the premises that the defendant had moved from that addressseveral months earlier. Nevertheless, the process server affixed the summons and complaint tothe door at that address and mailed process to that address, [*2]purportedly in compliance with CPLR 308 (4). The Civil Court ofthe City of New York, Queens County, granted the defendant's motion to vacate the default, andthe Appellate Term for the Second, Eleventh, and Thirteenth Judicial Districts affirmed, with oneJustice dissenting. We granted leave to appeal and now reverse and deny the defendant's motionto vacate the default judgment.
CPLR 308 (4) requires that the summons be affixed to the door of the defendant's "actualplace of business, dwelling place or usual place of abode." Although the required subsequentmailing to the defendant's last known residence will suffice for the second element of serviceunder CPLR 308 (4), affixing process to the door of the defendant's last known residence willnot be sufficient to meet the first element of the statute (see Feinstein v Bergner, 48NY2d 234 [1979]). The issue here is whether there is sufficient evidence, including thedefendant's failure to notify the Commissioner of the DMV of his change of address, as requiredby Vehicle and Traffic Law § 505 (5), to estop the defendant from obtaining vacatur of thedefault judgment on the ground that service of process was not made in strict compliance withCPLR 308 (4) (see Cruz v Narisi, 32 AD3d 981 [2006]).
To the extent that the defendant's motion to vacate his default was made pursuant to CPLR5015 (a) (1), based upon excusable default, it should have been denied, as the defendant's changeof address is not a reasonable excuse because he failed to comply with Vehicle and Traffic Law§ 505 (5) (see Candela v Johnson, 48 AD3d 502 [2008]; Labozzetta v Fabbro,22 AD3d 644 [2005]; Traore v Nelson, 277 AD2d 443 [2000]). Likewise, to theextent that the motion was made pursuant to CPLR 5015 (a) (4), based on lack of personaljurisdiction, it should have been denied, as the defendant is estopped from challenging thepropriety of service due to his failure to comply with Vehicle and Traffic Law § 505 (5)(see Labozzetta v Fabbro, 22 AD3d 644 [2005]; Kandov v Gondal, 11 AD3d 516[2004]).
A default judgment may be vacated pursuant to CPLR 317 where the defendant was servedby a method other than personal delivery and did not actually receive notice of the summons intime to defend, provided that the defendant has a meritorious defense (see Thakurdyal v 341Scholes St., LLC, 50 AD3d 889 [2008]). However, "denial of relief under CPLR 317 mightbe appropriate where . . . a defendant's failure to personally receive notice of thesummons was a deliberate attempt to avoid such notice" (Eugene Di Lorenzo, Inc. v A.C.Dutton Lbr. Co., 67 NY2d 138, 143 [1986]). Here, considering that the defendant suppliedthe police officer with two different addresses at the time of the officer's investigation, and thatthere was yet another address on record for the defendant at the DMV, his failure to comply withVehicle and Traffic Law § 505 (5) raised an inference that the defendant deliberatelyattempted to avoid notice of the action (see Cruz v Narisi, 32 AD3d 981 [2006]). Thedefendant failed to rebut that inference. Accordingly, the defendant was not entitled to reliefunder CPLR 317 (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138,143 [1986]; Paul Conte Cadillac v C.A.R.S. Purch. Serv., 126 AD2d 621, 622 [1987].Skelos, J.P., Angiolillo, Chambers and Lott, JJ., concur.