Chalk v. Catholic Medical Center of Brooklyn & Queens, Inc.

• Decision Date: 11 July 1977
• Parties: Arthur CHALK, Respondent, v. CATHOLIC MEDICAL CENTER OF BROOKLYN AND QUEENS, INC., et al., Defendants, Calvin Norman Haines, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 864

396 N.Y.S.2d 864

58 A.D.2d 822

Arthur CHALK, Respondent, v. CATHOLIC MEDICAL CENTER OF BROOKLYN AND QUEENS, INC., et al., Defendants Calvin Norman Haines, Appellant.

Supreme Court, Appellate Division, Second Department.

July 11, 1977.

Bower & Gardner, New York City (Leon Goldstein, New York City, of counsel), for appellant.

Abraham Tobias, Brooklyn (Hoberman, Sussman, Bloom & Reich, P. C., Brooklyn (Eugene Kahn, Herman E. Hoberman and Samuel J. Sussman, Brooklyn) of counsel), for respondent.

Before HOPKINS, J. P., and SHAPIRO, HAWKINS and SUOZZI, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, defendant Calvin Haines Norman, sued herein as Calvin Norman Haines, appeals from an order of the Supreme Court, Kings County, entered September 15, 1976, which (1) sustained the validity of personal service upon him pursuant to CPLR 308 (subd. 2) and (2) directed him to serve his answer within a stated period of time.

Order reversed, on the law, with $50 costs and disbursements, and complaint dismissed as against defendant-appellant.

The sole issue raised on this appeal is whether personal service of process upon the appellant, pursuant to subdivision 2 of CPLR 308 was properly made. CPLR 308 provides, in pertinent part:

"Personal service upon a natural person shall be made by any of the following methods:

"2. 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".

The Special Term held that valid service was made upon defendant Haines pursuant to CPLR 308 (subd. 2). We disagree and accordingly reverse the order and dismiss the complaint as against the appellant.

The complaint alleges that plaintiff was admitted to the emergency room of the defendant Catholic Medical Center of Brooklyn and Queens (hereinafter St. Mary's Hospital) on February 3, 1973, with scalp lacerations and abrasions. He received treatment, including X-rays, and was released. The allegations of medical malpractice concern the appellant's failure to diagnose and treat a skull fracture which resulted in brain damage and permanent incapacity to plaintiff.

The appellant was then, and presently is, Director of Radiology at St. Mary's Hospital, which is located in the Borough of Brooklyn, in New York City. Appellant resides in Nassau County and has no other place of business.

On November 3, 1975 a process server appeared at the hospital and served an administrator, one Bernard McCaffey, with process naming appellant as a defendant. Copies of the papers were then mailed to the appellant at the hospital's address. The process mailed to him at the hospital was returned by the hospital to plaintiff's counsel, in a letter dated November 3, 1975, on the ground that the hospital could not "be responsible for delivery of same."

Appellant never answered and defaulted. By notice of motion dated June 15, 1976, plaintiff moved for an inquest against appellant.

In opposition to the motion, appellant argued, insofar as is here pertinent, that the mailing of process authorized by subdivision 2 of CPLR 308 could not be made to his business address when he had a residence elsewhere.

The Special Term held that service was valid and directed appellant to serve an answer. In so holding, the Special Term reasoned that while the statute presently provided for mailing to defendant's residence, it had provided, prior to September 1, 1971, for mailing to a defendant's last known "address" and that, according to the Judicial Conference's report to the Legislature, the change was merely "stylistic" and intended no substantive change.

We disagree with the conclusion and reasoning of the Special Term. A brief history of the relevant legislation concerning this matter is in order.

Prior to the enactment of the CPLR in 1962 (effective September 1, 1963), the prerequisites and manner of substituted service upon a natural person residing within New York State was prescribed by sections 230 and 231 of the Civil Practice Act. The two methods of substituted service provides for in those statutes were (1) leaving a copy of the summons at the defendant's "residence" with a person of proper age or (2) affixing the process to defendant's "residence" and mailing the process to the defendant "at his place of residence" (Civ.Prac. Act, § 231). Under the Civil Practice Act, there was authority to the effect that neither a defendant's actual place of business nor any other location which was not actually used by him as living quarters would be regarded as his "residence" for the purposes of section 231 of the Civil Practice Act (see Weinstein v. Potashnikoff, Sup., 25 N.Y.S.2d 314; Young v. Young, 10 A.D.2d 922, 200 N.Y.S.2d 815; Johnson v. Diamond, 208 App.Div. 639, 203 N.Y.S. 895).

When the CPLR was adopted in 1962, the prerequisites and manner of substituted service was prescribed in section 308 (subd. 3). That section provided for substituted service by mailing the summons to the defendant's "last known residence" and either affixing it to "his place of business, dwelling house or usual place of abode" or delivering it to a person of suitable age and discretion at defendant's "place of business, dwelling house or usual place of abode". In Timen v. Robinson (N.Y.L.J., Apr. 6, 1964, p. 15, col. 1 (Sup.Ct., N.Y. County)), it was held that a mailing to a defendant's actual place of business, as opposed to a mailing to his "last known residence", would not be sufficient to effect substituted service pursuant to former CPLR 308 (subd. 3) (see, also, Entwistle v. Stone, 53 Misc.2d 227, 278 N.Y.S.2d 19).

While there is authority pursuant to ...