Oglesby v. Barragan ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 21, 2016 520789
________________________________
SANDRA J. OGLESBY et al.,
Appellants,
v
MEMORANDUM AND ORDER
RAFAEL BARRAGAN et al.,
Respondents,
et al.,
Defendant.
________________________________
Calendar Date: November 19, 2015
Before: Lahtinen, J.P., McCarthy, Egan Jr., Lynch and
Devine, JJ.
__________
Kessler Law Offices, Westtown (Leonard Kessler of counsel),
for appellants.
Law Office of Brian D. Richardson, Albany (Lela M. Gray of
counsel), for Rafael Barragan, 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 June 12, 2014 in Ulster County, which denied plaintiffs'
motion for an order directing service pursuant 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
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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 moved for
an order pursuant to CPLR 308 (5) directing service upon
defendants through their respective insurance companies. Supreme
Court denied plaintiffs' motion, and plaintiffs now 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) is impracticable"
(Cooper-Fry v Kolket, 245 AD2d 846, 847 [1997]; see Dime Sav.
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 of actual attempts to serve parties under
every method in the aforementioned provisions of CPLR 308, the
movant is required to make competent showings as to actual
efforts made to effect service (see Cooper-Fry v Kolket, 245 AD2d
at 847).
The record reveals that plaintiffs made merely one
respective attempt to serve defendants via certified mail at the
addresses listed on the police report related to the accident.
When plaintiffs relied on that police report for such addresses,
the report was approximately three years old. Plaintiffs offer
no explanation as to any further attempts to ascertain
defendants' current addresses other than the conclusory assertion
that they have investigated the whereabouts of Bryan Cuff and
Kathi Cuff and concluded that they did not live in New York.
Such conclusory statements and proof of a single failed attempt
to locate defendants based upon three-year outdated records does
not establish that service pursuant to CPLR 308 (1), (2) or (4)
was impracticable (see Cooper-Fry v Kolket, 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 the interest of justice is not properly
before us (see generally CPLR 306-b). As plaintiffs concede,
they raised this argument for the first time in their reply
papers on the motion. Reply papers are intended to address
contentions raised in opposition to a motion and not to
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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 is affirmed, with one bill of costs.
ENTER:
Robert D. Mayberger
Clerk of the Court