LaSORSA v. CORRIGAN (1998)

In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Putnam County (Hickman, J.), dated June 2, 1997, which granted the defendant's motion to dismiss the complaint for lack of personal jurisdiction, and (2), as limited by his brief, from so much of an order of the same court, dated September 16, 1997, as, upon reargument, adhered to the original determination.

ORDERED that the appeal from the order dated June 2, 1997, is dismissed, without costs or disbursements, as that order was superseded by the order dated September 16, 1997, made upon reargument;  and it is further,

ORDERED that the order dated September 16, 1997, is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court correctly determined that service of the summons with notice pursuant to CPLR 308(4) was invalid.   Although a copy of the summons may have been mailed to the defendant's “last known residence”, the summons had not been affixed to the defendant's “actual place of business, dwelling place or usual place of abode” (CPLR 308[4];  see, Feinstein v. Bergner, 48 N.Y.2d 234, 241, 422 N.Y.S.2d 356, 397 N.E.2d 1161;  European Am. Bank & Trust Co. v. Serota, 242 A.D.2d 363, 661 N.Y.S.2d 282;  Tymkin v. Edwards, 158 A.D.2d 973, 551 N.Y.S.2d 126).   The evidence shows that the defendant had moved a year and a half before service had been attempted, that he had notified the Department of Motor Vehicles of his change of address (see, Vehicle and Traffic Law § 505), and that he had not otherwise attempted to avoid the service of process (see, Goot v. Pack, 198 A.D.2d 475, 604 N.Y.S.2d 211).

As this case was pending as of January 1, 1997, the defendant was required to move to dismiss the complaint on jurisdictional grounds within 60 days thereof (see, CPLR 3211[e];  Wade v. Byung Yang Kim, 250 A.D.2d 323, 681 N.Y.S.2d 355 [decided herewith];  Fleet Bank, N.A. v. Riese, 247 A.D.2d 276, 668 N.Y.S.2d 611).   Since the defendant's motion was served on February 28, 1997, it was timely made (see, CPLR 2211).

MEMORANDUM BY THE COURT.