| Oglesby v Barragan |
| 2016 NY Slip Op 00412 [135 AD3d 1215] |
| January 21, 2016 |
| Appellate Division, Third Department |
[*1]
| Sandra J. Oglesby et al., Appellants, v Rafael Barraganet al., Respondents, et al. Defendant. |
Kessler Law Offices, Westtown (Leonard Kessler of counsel), for appellants.
Law Office of Brian D. Richardson, Albany (Lela M. Gray of counsel), for RafaelBarragan, respondent.
Adams, Hanson, Rego & Kaplan, Albany (Gerald D. D'Amelia Jr. of counsel),for Bryan J. Cuff and another, respondents.
McCarthy, J. Appeal from an order of the Supreme Court (Work, J.), entered June12, 2014 in Ulster County, which denied plaintiffs' motion for an order directing servicepursuant to CPLR 308 (5).
Plaintiffs and four out-of-state defendants were involved in a multi-vehicle collision.Plaintiffs commenced this action, alleging negligence and loss of consortium. Thereafter,plaintiffs attempted but were unable to perfect service upon defendants Bryan J. Cuff,Kathi L. Cuff and Rafael Barragan (hereinafter collectively referred to as defendants)pursuant to Vehicle and Traffic Law § 253. Plaintiffs subsequently movedfor an order pursuant to CPLR 308 (5) directing service upon defendants through theirrespective insurance companies. Supreme Court denied plaintiffs' motion, and plaintiffsnow appeal.
"[A] court is without power to direct . . . service pursuant to CPLR 308(5) absent a showing by the moving party that service under CPLR 308 (1), (2) or (4) isimpracticable" (Cooper-Fry v Kolket, 245 AD2d 846, 847 [1997]; see DimeSav. Bank of N.Y. v Mancini, 169 AD2d 964, 964 [1991]; Matter of Foley,140 AD2d 892, 893 [1988]). Although impracticality does not require a showing ofactual attempts to serve parties under every method in the [*2]aforementioned provisions of CPLR 308, the movant isrequired to make competent showings as to actual efforts made to effect service (seeCooper-Fry v Kolket, 245 AD2d at 847).
The record reveals that plaintiffs made merely one respective attempt to servedefendants via certified mail at the addresses listed on the police report related to theaccident. When plaintiffs relied on that police report for such addresses, the report wasapproximately three years old. Plaintiffs offer no explanation as to any further attempts toascertain defendants' current addresses other than the conclusory assertion that they haveinvestigated the whereabouts of Bryan Cuff and Kathi Cuff and concluded that they didnot live in New York. Such conclusory statements and proof of a single failed attempt tolocate defendants based upon three-year outdated records does not establish that servicepursuant to CPLR 308 (1), (2) or (4) was impracticable (see Cooper-Fry vKolket, 245 AD2d at 847; Coffey v Russo, 231 AD2d 546, 547 [1996];Hitchcock v Pyramid Ctrs. of Empire State Co., 151 AD2d 837, 838-839[1989]).
Plaintiffs' argument that they are entitled to an extension of time for service in theinterest of justice is not properly before us (see generally CPLR 306-b). Asplaintiffs concede, they raised this argument for the first time in their reply papers on themotion. Reply papers are intended to address contentions raised in opposition to a motionand not to supplement a motion with new arguments (see Jones v Castlerick, LLC, 128 AD3d 1153, 1154 [2015];Thome v Benchmark Main Tr.Assoc., LLC, 125 AD3d 1283, 1286 [2015]; Schissler v Athens Assoc., 19 AD3d 979, 980 [2005]).Accordingly, Supreme Court acted properly in not considering the argument.
Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the order isaffirmed, with one bill of costs.