Booth v. Lipton

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before MANGANO
• Citation: Booth v. Lipton, 449 N.Y.S.2d 289, 87 A.D.2d 856 (N.Y. App. Div. 1982)
• Decision Date: 19 April 1982
• Parties: Donald BOOTH, et al., Respondents, v. David E. LIPTON, Appellant.

Page 289

449 N.Y.S.2d 289

87 A.D.2d 856

Donald BOOTH, et al., Respondents, v. David E. LIPTON, Appellant.

Supreme Court, Appellate Division Second Department.

April 19, 1982.

Mirabel, Wortman & Freidel, Huntington (Douglas J. Swart, Huntington, of counsel), for appellant.

Kelly, Luglio & Mazzola, Deer Park (James J. Kelly, Deer Park, of counsel), for respondents.

Before MANGANO, J. P., and GULOTTA, THOMPSON and BROWN, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, defendant appeals from an order of the Supreme Court, Suffolk County, dated August 24, 1981, which (1) granted the plaintiffs' motion to strike the defendant's second affirmative defense alleging lack of personal jurisdiction, and (2) directed that the service of a copy of the complaint upon the defendant's attorneys pursuant to CPLR 308 (subd. 5) be deemed good and sufficient service upon the defendant nunc pro tunc to the date of the original service, to wit: June 24, 1980.

Order reversed, on the law, with $50 costs and disbursements, and motion denied.

In this medical malpractice action against the defendant-doctor for acts allegedly committed by him on or about October 21, 1978, plaintiffs attempted service upon the doctor on June 24, 1980 by delivery of a copy of the summons and verified complaint to a person of suitable age and discretion at the doctor's offices in Smithtown, New York, and by mailing a copy of the process to the same office address. Thereafter, on August 6, 1980, the defendant interposed an answer in which he pleaded, inter alia, lack of personal jurisdiction as an affirmative defense. On October 10, 1980, the plaintiffs moved, in the alternative, for an order striking that affirmative defense or authorizing "expedient" service upon the defendant's attorneys pursuant to subdivision 5 of CPLR 308. The motion was denied on December 3, 1980 with leave to renew, but it was not until June 29, 1981 (i.e., almost 7 months later and approximately two months after the applicable Statute of Limitations had expired) that the plaintiffs so moved. Their motion was granted on August 24, 1981, and the defendant appeals. We reverse.

Service upon the defendant was not properly made in the first instance, as this court has repeatedly held that the "mailing" requirement of subdivision 2 of CPLR 308 is to be strictly construed and requires the mailing of process to a defendant's "last known residence" rather than his "actual place of business" (Connell v. Hayden , 83 A.D.2d 30, 443 N.Y.S.2d 383; Chalk v. Catholic Med. Center of Brooklyn & Queens, 58 A.D.2d 822, 396 N.Y.S.2d 864; see Feinstein v. Bergner, 48 N.Y.2d 234, 422 N.Y.S.2d 356, 397 N.E.2d 1161). Moreover, the direction of...