Brownell v. Feingold

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before DAMIANI
• Citation: Brownell v. Feingold, 440 N.Y.S.2d 57, 82 A.D.2d 844 (N.Y. App. Div. 1981)
• Decision Date: 15 June 1981
• Parties: Alice BROWNELL et al., Respondents, v. Stanley FEINGOLD, M.D., Appellant.

Page 57

440 N.Y.S.2d 57

82 A.D.2d 844

Alice BROWNELL et al., Respondents, v. Stanley FEINGOLD, M.D., Appellant.

Supreme Court, Appellate Division Second Department.

June 15, 1981.

Mirabel, Wortman & Freidel, Huntington (Roger B. Lawrence, Huntington, of counsel), for appellant.

Stephen I. Widlitz, Huntington, for respondents.

Before DAMIANI, J. P., and MANGANO, RABIN and GULOTTA, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County, dated September 4, 1980, as, upon granting his motion for reargument or renewal, dismissed his affirmative defenses of lack of personal jurisdiction and Statute of Limitations.

Order affirmed insofar as appealed from, with $50 costs and disbursements.

The sole issue presented on this appeal is whether service of process, pursuant to CPLR 308 (subd. 2), was properly effected by the plaintiffs. It is undisputed that, approximately two months prior to the expiration of the Statute of Limitations, the summons was delivered "to a person of suitable age and discretion" at the defendant's "actual place of business". The defendant argues, however, that the service was defective inasmuch as no copy was mailed to him at his "last known residence", as required by the statute. A copy of the summons was mailed to the defendant at 29 Frankie Lane, Bethpage, New York 11714. The defendant's correct address is 29 Frankie Lane, Old Bethpage, New York 11804.

It is, of course, true that jurisdiction is not acquired pursuant to CPLR 308 (subd. 2), unless both the "delivery" and "mailing" requirements have been strictly complied with (see Feinstein v. Bergner, 48 N.Y.2d 234, 422 N.Y.S.2d 356, 397 N.E.2d 1161; Glikman v. Horowitz, 66 A.D.2d 814, 411 N.Y.S.2d 365). However, we cannot agree with the defendant's suggestion that any mistake in the address to which the summons is mailed--no matter how minor--will render the service of process void. Where, despite an error in the address, it is virtually certain that the summons will arrive at the defendant's last known residence, the "mailing" requirement of "delivery and mail" service should be considered satisfied.

In the case at bar, the fact that the summons was mailed to "Bethpage" rather than "Old Bethpage" could not have prevented it from reaching its intended destination. According to an affidavit of the Bethpage Postmaster, letters intended for Old Bethpage are...