Citation Numbers: 117 Misc. 2d 148
Judges: Hughes
Filed Date: 1/3/1983
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
The court holds that the phrase “last known residence” used in CPLR 308 (subd 2) is synonymous with the term “last known address”, and that the failure to use the correct post-office address in mailing process to defendant results in the court not obtaining personal jurisdiction of the party upon whom service has been attempted.
This action is brought by plaintiff to recover for personal injuries she allegedly sustained on December 20, 1978, when her vehicle collided with an automobile owned and operated by defendant. The attempted service of process was pursuant to CPLR 308 (subd 2) which permits personal service upon a natural person “by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by mailing the summons to the person to be served at his last known residence”. According to the affidavit of the process server, he delivered a copy of a summons with notice to a person of
To obtain jurisdiction under CPLR 308 (subd 2), there must be strict compliance with both the delivery and mailing requirements (Booth v Lipton, 87 AD2d 856). Even if the defendant actually receives the summons, when the manner of service has not beeii as authorized by the statute, the court lacks personal jurisdiction (Feinstein v Bergner, 48 NY2d 234). The plaintiff has the burden of proof on the question of whether personal jurisdiction has been obtained (Saratoga Harness Racing Assn. v Moss, 26 AD2d 486, 490, affd 20 NY2d 733). Here, the plaintiff complied with the delivery requirement and the only dispute is whether there has been a proper mailing.
The court finds there has not been a proper mailing. The basis for that holding is found in volume 1 of Weinstein-Korn-Miller (NY Civ Prac, par 308.13a) as follows: “CPLR 308 (2) requires that after the summons is left with a person of suitable age and discretion a copy is to be mailed to the named defendant at his last known residence. Delivery and mailing are both essential in order to obtain jurisdiction of the defendant. Prior to the 1971 amendment (effective September 1,1971) subdivision (2) provided that a copy of the summons was to be mailed to the defendant’s last known ‘address’. The Judicial Conference stated that the change was stylistic and that no substantive effect was intended.” (p 3-215.)
The motion of defendant for an order pursuant to CPLR 3211 (subd [a], par 8) dismissing the action upon the ground that the court lacks personal jurisdiction of defendant Mark J. La Pierre will be granted, without costs. The cross motion of plaintiff for an order dismissing the third and fifth affirmative defenses set forth in defendant’s answer will be denied, without costs.