| Wishni v Taylor |
| 2010 NY Slip Op 05855 [75 AD3d 747] |
| July 1, 2010 |
| Appellate Division, Third Department |
| Alice Wishni, Respondent, v Leonard Taylor, Also Known asLeonard C. Taylor, Also Known as Leonard C. Taylor, III,Appellant. |
—[*1] O'Dell & O'Dell, P.C., Glens Falls (Veronica Carrozza O'Dell of counsel), forrespondent.
McCarthy, J. Appeal from that part of an order of the Supreme Court (Hall, Jr., J.), enteredJuly 1, 2009 in Washington County, which denied defendant's cross motion to dismiss thecomplaint and amended complaint.
Plaintiff alleges that she was injured in July 2005 after she fell as a result of negligent designor maintenance of an apartment building at 2318 Broadway in the City of Schenectady,Schenectady County. She was a tenant in that building, which was owned by defendant. Plaintiffcommenced this action by filing the summons and complaint in July 2008. After three failedattempts at personal delivery, plaintiff's process server affixed the summons and complaint to thedoor of 1½ Cimino Lane in Schenectady—listed as defendant's address on plaintiff'sJuly 2005 lease—and mailed a copy of the papers to that address.
In October 2008, plaintiff filed an amended summons and complaint that correctedtypographical errors. In response to plaintiff's November 2008 ex parte motion to extend the timeto serve defendant, in December 2008 Supreme Court provided plaintiff additional time,ordering that [*2]service of the amended papers upon defendantby " 'nail and mail' service" on the Cimino Lane and Broadway addresses "shall be consideredgood and adequate service." A few days prior to the court signing the order, plaintiff's processserver affixed and mailed the amended summons and complaint to three locations—thetwo addresses specified by Supreme Court as well as another location revealed by the processserver's search.[FN1]Defendant avers that none of those addresses was his actual place of business or dwelling placein 2008.
Plaintiff moved for a default judgment. Defendant cross-moved to, among other things,dismiss the complaint and amended complaint for lack of personal jurisdiction. Supreme Courtdenied plaintiff's motion and the portion of defendant's cross motion seeking dismissal. The courtalso held that service was completed in the manner set forth in the December 2008 order andamended that order nunc pro tunc to make it effective as of the date that plaintiff's process serveraffixed and mailed the papers. Defendant now appeals from the portion of the order denying hiscross motion to dismiss.
Plaintiff's purported service of the summons and complaint in July 2008 was ineffective.Under the "nail and mail" provision of the CPLR, a plaintiff may mail process to the defendant'slast known residence, but the process must be affixed to the defendant's "actual place ofbusiness, dwelling place or usual place of abode" (CPLR 308 [4]). Because the summons andcomplaint here were affixed to the door of defendant's last known residence on CiminoLane—where he had not lived for more than two years—rather than his actualdwelling place, that attempted service did not comply with the statute and was ineffective(see Feinstein v Bergner, 48 NY2d 234, 239-241 [1979]; Spath v Zack, 36 AD3d 410, 413[2007]; Community State Bank v Haakonson, 94 AD2d 838, 839 [1983]).
Purported service of the amended summons and complaint was also defective. Althoughplaintiff attempts to characterize her November 2008 motion as an application for an extensionof time to serve defendant and for permission to use an alternate method of service under CPLR308 (5), the "wherefore" clause of her attorney's affirmation supporting the motion, the order toshow cause and the December 2008 order granting the motion all state that the motion soughtonly an extension of time for service. A court may only direct an alternate method of service"upon motion" seeking such relief "if service is impracticable" under certain other subdivisionsof the statute (CPLR 308 [5]). The December 2008 order should not have included an alternatemethod of service because plaintiff did not request that relief in her motion and did not make asufficient showing that service was otherwise impracticable (see David v Total Identity Corp., 50 AD3d 1484, 1485 [2008];DeCarvalhosa v Adler, 298 AD2d 293, 295 [2002]).[FN2]Plaintiff's attempted service by affixing the amended summons and complaint to the CiminoLane address was ineffective because it was not defendant's actual dwelling [*3]place and no efforts were made to personally serve him at thataddress (see CPLR 308 [4]). Similarly, the Broadway address was not defendant's actualdwelling place or place of business and no efforts were made to personally serve him there.Thus, plaintiff never properly served defendant with the summons and complaint or amendedsummons and complaint.
While timely service was not effected, late service may be permitted by a court "upon goodcause shown or in the interest of justice" (CPLR 306-b). Under the circumstances here, plaintiffis entitled to an extension of time to serve defendant in the interest of justice. Plaintiff timelypurported to serve defendant in a manner (now determined to be defective) that was approved bySupreme Court, the statute of limitations has run and defendant was not prejudiced because heactually received notice of the action (see Spath v Zack, 36 AD3d at 413-414; Matterof Standifer v Goord, 285 AD2d 912, 913 [2001]; see also Leader v Maroney, Ponzini &Spencer, 97 NY2d 95, 105-106 [2001]; Mead v Singleman, 24 AD3d 1142, 1144 [2005]). We thus extendplaintiff's time to serve the amended summons and complaint upon defendant for an additional30 days from the date of this Court's decision.
Cardona, P.J., Peters, Spain and Egan Jr., JJ., concur. Ordered that the order is modified, onthe law and the facts, without costs, by extending plaintiff's time to serve the amended summonsand complaint upon defendant for 30 days from the date of this Court's decision, and, as somodified, affirmed.
Footnote 1: Defendant avers, and plaintiffdoes not contest, that defendant never had any connection to the third location where the processserver affixed and mailed the documents.
Footnote 2: The December 2008 orderpermitted " 'nail and mail' service" at two addresses. If plaintiff and Supreme Court believed thatdefendant lived at the Cimino Lane address, service under CPLR 308 (1), (2) or (4) would havebeen practicable there, rendering CPLR 308 (5) unavailable.