Dobkin v. Chapman
| Decision Date | 29 February 1968 |
| Citation | 236 N.E.2d 451,289 N.Y.S.2d 161,21 N.Y.2d 490 |
| Parties | , 236 N.E.2d 451 Richard DOBKIN, Respondent, v. Shirley J. CHAPMAN, Jr., et al., Defendants. Motor Vehicle Accident Indemnification Corporation, Appellant. Carrie D. SELLARS, as Administratrix of the Estate of Esther Strukes, Deceased, Respondent, v. Earl V. RAYE, Defendant. Motor Vehicle Accident Indemnification Corporation, Appellant. Charles KELLER, Respondent, v. Edward RAPPOPORT, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
John C. Kinney and Charles T. Beeching, Jr., Syracuse, for appellant in the first and second above-entitled actions.
No appearance for Richard Dobkin, respondent in the first above-entitled action.
Robert Alvin Adler, Sidney S. Loberfeld and Benjamin Adler, New York City, for Carrie D. Sellers, respondent in the second above-entitled action.
Patrick J. Hughes, New York City, for American Insurance Association, amicus curiae.
Reid A. Curtis and Raymond F. Condon, Merrick, for appellant in the third above-entitled action.
Thomas R. Newman, New York City, and Charles R. Kleinhardt, Baldwin, for respondent in the third above-entitled action.
Each of these three cases stems from an automobile accident in New York in which the victim was either injured or killed. In two of the cases, the defendants were residents while, in the third, they had been domiciled in another state. Since the defendants' whereabouts were unknown, rendering normal prescribed methods of service of process upon them impossible, we are called upon to decide an important question of first impression, namely, whether the methods directed by the respective courts for such service were authorized by paragraph 4 of CPLR 308 and, if they were, whether they satisfied due process requirements. The Appellate Division, Second Department, upheld the method of service in each case, and the appeal is before us by permission of that court on a certified question.
The facts in the three cases may be briefly stated.
The plaintiff, a New York resident, sues to recover for personal injuries sustained in an accident in Kings County, in which he was struck by an automobile operated by one of the defendants and owned by the other. The car bore a Pennsylvania registration plate. The owner's registration certificate, produced at the time of the accident, indicated that he lived at an address in Aliquippa, Pennsylvania; this was also the address given by the owner to the Pennsylvania Bureau of Motor Vehicles. The driver's operator's license, also displayed, showed that the driver resided in the same town but at another address.
Numerous letters sent to these addresses by ordinary mail were not answered but were not returned. However, certified and registered mail sent to the same addresses were returned by the Post Office. The Sheriff of the county in which Aliquippa was located was unable to find the defendants to serve them with process sent him for that purpose. In his return, he stated that one of the addresses was that of the defendants' partents who told him that they had not heard from the defendants in four years. The plaintiff thereupon attempted to effect service pursuant to section 253 of the Vehicle and Traffic Law, Consol.Laws, c. 71 by serving the Secretary of State and mailing the summons and complaint to the defendants by registered mail. This attempt proved unsuccessful since the envelopes were returned, unopened, with the notation, , and, thus, the required proof of the delivery or refusal of the registered mail was lacking.
On these facts, the Civil Court of the City of New York, Kings County, concluding that the defendants could not be served with process by any of the methods prescribed in paragraphs 1, 2 and 3 of CPLR 308, entered an ex parte order, pursuant to paragraph 4 of that section, permitting service by ordinary mail to the defendants at the Pennsylvania addresses. The Motor Vehicle Accident Indemnification Corporation (MVAIC), acting under article 17--A of the Insurance Law, Consol.Laws, c. 28--having previously been notified of the claim and being satisfied, apparently, that the defendants were not insured--moved to vacate the service, presumably under CPLR 3211 (subd. (a), par. 8). The motion was denied and that denial has been affirmed at both the Appellate Term and the Appellate Division, in the latter court by a 3 to 2 vote.
An administratrix sues to recover for the wrongful death of her decedent, killed in an accident in Wantagh, Nassau County, while a passenger in an automobile owned and operated by the defendant. At the time of the accident, the defendant lived on Monroe Street in Brooklyn. The policy of insurance which covered his automobile had been cancelled 13 days before the accident.
The administratrix attempted to commence an action through personal service at the Brooklyn address but the defendant could not be found, and all correspondence directed to him at that address was returned. The plaintiff then sought an ex parte order under paragraph 4 of CPLR 308. In granting the application, the Supreme Court, Nassau County, in an order dated May 8, 1964, directed that service 'upon the Secretary of State of the State of New York, in conformity with the Secretary of State of the State the Vehicle and Traffic Law, shall constitute due service' on the defendant. The plaintiff served the Secretary of State and sent two registered letters to the defendant at the Monroe Street address. Both letters were returned, one with a notation, and the other with a notation, , thus failing to meet the requirements of the Vehicle and Traffic Law. The plaintiff thereupon applied for and obtained another ex parte order, also under paragraph 4 of CPLR 308. In that order, dated August 6, 1964--and it is the one with which we are concerned--the court directed that the steps already taken under the earlier order be deemed sufficient service, provided that a copy of the summons and of the order be published once in a designated Brooklyn newspaper. MVAIC, previously notified that the defendant was uninsured and acting on behalf of itself and of the defendant, moved, under CPLR 3211 (subd. (a), par. 8), to set aside the service and dismiss the complaint. The motion was denied and the Appellate Division, dividing as it had in the Dobkin case, affirmed the resulting order.
The plaintiff, a New York resident, sues to recover for injuries sustained when his automobile collided with the defendant's car in Baldwin, Nassau County. At the time, the defendant resided at an address in Long Beach in the same county. He moved from that place without leaving any forwarding address and the plaintiff was unable to serve him with process. Inquiry from persons residing in the neighborhood where the defendant had lived, from his last known employer and from the New York State Motor Vehicle Bureau, proved unavailing. Sometime later, the plaintiff was advised by the defendant's liability insurance carrier that the defendant had left New York and had moved to a specified address in California.
The plaintiff then attempted service pursuant to sections 253 and 254 of the Vehicle and Traffic Law. However, registered mail sent to the California address was returned with the notation, 'Moved--Left no Address'. Further attempts to locate the defendant were equally unsuccessful. The plaintiff then applied to the Supreme Court, Nassau County, for an ex parte order under paragraph 4 of CPLR 308. The court determined that service on the defendant under paragraphs 1, 2 and 3 of 308 was impracticable and, acting pursuant to paragraph 4, directed that service be made (1) by mailing a copy of the summons and complaint to the defendant's last known address in New York (in Long Beach) and (2) by delivering copies thereof to the insurance carrier.
Following such service, the defendant, by attorneys for the insurance carrier, moved, under CPLR 3211 (subd. (a), par. 8), to vacate the ex parte order directing the manner of service and to dismiss the action. The court at Special Term denied the motion and, noting that the insurance carrier had been able to tell plaintiff's counsel of the defendant's removal to California, held that 'the most reasonable means of giving notice to defendant was notice to (such) insurance carrier'. The Appellate Division unanimously affirmed that disposition. 1
As already indicated, the appellant in each case contends that the mode of service employed was unauthorized by the statute and that, if it was authorized, it violated the requirements of due process. Agreeing with the conclusion reached by the Appellate Division, we find no merit in either of these contentions.
Turning first to the issue of statutory construction, we direct our attention to CPLR 308. Entitled 'Personal service upon a natural person', 308 provides how such service may be made. In its first three paragraphs, the statute specifies with some precision the manner of effecting such personal service and in paragraph 4 it recites that, 'if service is impracticable' under the other paragraphs, then, service 'shall be made * * * in such manner as the court, upon motion without notice, directs'. 2
It must be assumed, of course, that the Legislature, by enacting paragraph 4 of CPLR 308, meant the court to have only such power and discretion as it could exercise constitutionally. (See American Power & Light Co. v. S.E.C., 329 U.S. 90, 108, 67 S.Ct. 133, 144, 91 L.Ed. 103; Matter of Coates, 9 N.Y.2d 242, 213 N.Y.S.2d 74, 173 N.E.2d 797; Knapp v. Fasbender, 1 N.Y.2d 212, 232, 151 N.Y.S.2d 668, 134 N.E.2d 482; and see, infra, p. 501 et seq.) However, we reject the appellant MVAIC's contention that, under paragraph 4, the court was confined to doing far Less than it might do constitutionally--that, indeed, the court could only provide for ...
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