Stevens v. Feitknecht ( 1983 )

Order unanimously reversed, with costs, and motion granted. Memorandum: Plaintiff commenced the instant lawsuit in accordance with the “Nail & Mail” method of service (CPLR 308, subd 4). Defendant’s second affirmative defense alleges lack of personal jurisdiction based on defective service. Plaintiff moved to dismiss this defense (CPLR 3211, subd [b]). Defendant’s sole argument in opposition to the motion was that the affidavit of service was defective because it contained “no showing” that the address in question was defendant’s actual dwelling place or last known address. This argument is insufficient to defeat a motion to dismiss. The affidavit of service alleges that the address is defendant’s actual and last known residence and nothing more is required therein. While the affidavit of service, standing alone, might be insufficient were the facts contested (see, e.g., Jones v King, 24 AD2d 430), here defendant does not deny that the address was his actual and last known residence. In the absence of any question of fact, the motion to dismiss must be granted. (Appeal from order of Supreme Court, Monroe County, Kennedy, J. — strike affirmative defense.) Present — Hancock, Jr., J. P., Callahan, Doerr, Boomer and Moule, JJ.