Mendoza v. Sarfate ( 1995 )

In an action to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Queens County (Rutledge, J.), dated October 25, 1993, as dismissed the complaint without prejudice.

Ordered that the order is affirmed insofar as appealed from, with costs.

The evidence introduced at the hearing on the issue of service of process established that the searches which the plaintiff conducted of Post Office and Department of Motor Vehicle records, almost two years after the defendant had moved to Arizona, produced a New York address for her. In addition, the process server testified that when he attempted service at a residence where, according to Department of Motor Vehicles records, the defendant’s husband resided, a woman inside the dwelling acknowledged that she was the defendant. Accordingly, since the plaintiff had no reasonable basis to conclude that the defendant had moved to another State until after the Statute of Limitations had expired, the defendant’s attempt to invoke CPLR 207 (3) is improper and the tolling provision set forth in CPLR 207 applies (cf., Yarusso v Arbotowicz, 41 NY2d 516). Mangano, P. J., O’Brien, Ritter, Pizzuto and Florio, JJ., concur.