KARLSSON NG v. CIRINCIONE

Reset A A Font size: Print

Civil Court, City of New York,

KARLSSON & NG, Plaintiff, v. William G. CIRINCIONE, Also Known as William G. Cirincion, Defendant.

Decided: January 06, 2000

Michael Kane, New York City (Laurie Marin of counsel), for defendant. Karlsson & Ng, plaintiff pro se.

This action seeks attorneys' fees for plaintiff's legal services to defendant.   Defendant has moved to dismiss the complaint based on lack of personal jurisdiction.   C.P.L.R. § 3211(a)(8).   This motion requires the court to determine whether a correct zip code is necessary for the mailing following substituted service on a person of suitable age and discretion at the place of business or dwelling of the person to be served.

Plaintiff alleges that the summons and complaint in this action were served March 10, 1997, by substituted service on defendant's wife, who is described in the affidavit of service, followed by mailing to defendant at 406 Mariner Drive, Jupiter, Florida 33458.

I. DELIVERY TO A PERSON OF SUITABLE AGE AND DISCRETION

 In her first affidavit, defendant's wife alleges she was never “personally handed” the summons and complaint.   Aff. of Beeyan Cirincione ¶ 3. The delivery requirement of C.P.L.R. § 308(2) is satisfied by leaving the summons and complaint in the vicinity, even outside the door, of the person being served upon her resistance or refusal to accept the papers, as long as she is made aware they are being left.  Bossuk v. Steinberg, 58 N.Y.2d 916, 918, 460 N.Y.S.2d 509, 447 N.E.2d 56 (1983);  Charnin v. Cogan, 250 A.D.2d 513, 518, 673 N.Y.S.2d 134 (1st Dep't 1998);  Duffy v. St. Vincent's Hospital, 198 A.D.2d 31, 603 N.Y.S.2d 47 (1st Dep't 1993).   In that first affidavit, defendant's wife does not deny that the summons and complaint were left with her via personal delivery or that she received them on March 10, 1997.   Although she also never disputes the process server's description of her, in her reply affidavit she expands upon her earlier statement and denies that the summons and complaint were “left with me on March 10, 1997 or any other date.”   Aff. in Reply of Beeyan Cirincione ¶ 4.

II. THE FOLLOW-UP MAILING

 Second, defendant's correct zip code is 33477, not 33458.   Plaintiff does not dispute that the required follow-up mailing was addressed to the incorrect zip code, but contends that the correct zip code was not necessary for delivery to defendant.   As evidence supporting that conclusion, plaintiff points to defendant's responses to plaintiff's correspondence to defendant at the incorrect zip code, which defendant does not deny.

 Actual receipt of papers generally is irrelevant to whether service is proper.  Raschel v. Rish, 69 N.Y.2d 694, 697, 512 N.Y.S.2d 22, 504 N.E.2d 389 (1986);  Laino v. Cuprum S.A. de C.V., 235 A.D.2d 25, 32, 663 N.Y.S.2d 275 (2d Dep't 1997);  Avakian v. De Los Santos, 183 A.D.2d 687, 583 N.Y.S.2d 275 (2d Dep't 1992).   In determining the necessity of a correct zip code as part of a postal address and for notices of legal proceedings, however, the ability to locate the address and effect delivery are considerations.   Bowery Sav. Bank v. 130 E. 72nd St. Realty Corp., 180 A.D.2d 559, 560, 580 N.Y.S.2d 264 (1st Dep't 1992);  Kemp v. Monroe County Bd. of Elections, 129 Misc.2d 491, 492, 493 N.Y.S.2d 529 (Sup.Ct. Monroe Co.1985);  Goldstein v. Perez, 133 Misc.2d 303, 305, 506 N.Y.S.2d 999 (Civ.Ct. Kings Co.1986).   An incorrect zip code may delay delivery, providing a basis to excuse a late response, Lawrence v. M.G. Ellis Agency, Inc., 138 A.D.2d 980, 981, 526 N.Y.S.2d 308 (4th Dep't 1988), but not thwart delivery altogether, providing a basis to excuse a complete default or invalidate the service.   On the other hand, the zip code is part of a mailing address, and an incorrect address may cause nondelivery.  New York City Hous. Auth. v. Fountain, 172 Misc.2d 784, 787, 789, 660 N.Y.S.2d 247 (Civ.Ct. Bronx Co.1997).

The fundamental due process requirement in any legal proceeding where parties' rights and obligations are to be determined is notice reasonably calculated to apprise the parties of the proceeding and afford them an opportunity to present their claims.  Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950);  Keane v. Kamin, 94 N.Y.2d 263, 265, 701 N.Y.S.2d 698, 723 N.E.2d 553 (1999);  Beckman v. Greentree Secs., Inc., 87 N.Y.2d 566, 570, 640 N.Y.S.2d 845, 663 N.E.2d 886 (1996).   In this case, defendant's responses to plaintiff's correspondence evidence delivery despite the incorrect zip code.   Defendant's correspondence responding to plaintiff, however, alerted it to defendant's correct zip code and should have prompted plaintiff to correct its error in future service of papers.   Nevertheless, under the ultimate Mullane standard and under all the circumstances, plaintiff might have reasonably calculated that if defendant received correspondence at the address previously used, defendant would receive the summons and complaint mailed to the same address.

New York City Hous. Auth. v. Fountain, 172 Misc.2d at 787, 789-90, 793-94, 660 N.Y.S.2d 247, held that a correct zip code is necessary to proper service for purposes of obtaining a default judgment, thus denying the respondent an opportunity to present a defense, particularly in a summary proceeding, where the opportunity to answer is short.   Here, a finding that service was improper would cause dismissal of plaintiff's action.   A finding that service was proper would not deny either side the opportunity to present its case and to resolve the action on its merits, unless the court were to enter a default judgment based on that finding.

The conclusion in Fountain, moreover, was compelled by 6 R.C.N.Y. § 2-238:

All process mailed pursuant to the requirements of CPLR 308(4) or RPAPL 735(1) shall include on the envelope as part of the address the proper zip code of the person served.

In Fountain, R.P.A.P.L. § 735(1) applied.   Here, neither that section nor C.P.L.R. § 308(4) applies.   C.P.L.R. § 308(4) applies where neither personal delivery nor substituted service on a person of suitable age and discretion at the place of business or dwelling of the person to be served within the state can be made, and the process server must resort to affixing the papers to the place of business or dwelling, followed by the required mailing.   Here, substituted service outside the state was effected pursuant to C.P.L.R. §§ 313 and 308(2).   The fact that 6 R.C.N.Y. § 2-238 omits reference to C.P.L.R. § 308(2), while specifically referring to a separate subdivision of § 308, compels the conclusion that a mailing under § 308(2) is proper without the correct zip code.

The distinction comports with the due process standard.   Service under C.P.L.R. § 308(2), substituted service, is more reasonably calculated to apprise parties of a proceeding and less reliant on the follow-up mailing than affixation to the intended recipient's door.

III. CONCLUSION

In sum, the necessity for a correct zip code depends on (1) whether a finding of proper service will result in a default judgment, rather than dismissal;  (2) whether the case is a summary proceeding;  and (3) whether the mailing is pursuant to R.P.A.P.L. § 735(1), applicable to summary proceedings, or C.P.L.R. § 308(4), following resort to affixation of the papers at the place of business or dwelling, rather than C.P.L.R. § 308(2), following substituted service.   None of these factors pertain here.

Defendant does not contest the propriety of the follow-up mailing other than the lack of a proper zip code.   See 463 East 168th Street HDFC v. Woods, N.Y.L.J., May 31, 1995, at 27, col. 1 (Civ.Ct. Bronx Co.).   Nor does he deny that the postal delivery located his correct address and actually effected delivery.   See Bowery Sav. Bank v. 130 E. 72nd St. Realty Corp., 180 A.D.2d at 560, 580 N.Y.S.2d 264;  New York City Hous. Auth. v. Fountain, 172 Misc.2d at 790-91, 660 N.Y.S.2d 247.   His wife's reply affidavit, however, does deny delivery to a person of suitable age and discretion at his dwelling.   Therefore the court grants defendant's motion to dismiss for lack of personal jurisdiction to the extent of granting a hearing on the sole issue of whether the summons and complaint were left with a person of suitable age and discretion at his dwelling March 10, 1997.   The court denies the motion on the ground that the mailing was defective or on any other ground.   C.P.L.R. §§ 308(2), 313, 3211(a)(8).

[Portions of opinion omitted for purposes of publication.]

LUCY BILLINGS, J.