Dobkin v. Chapman

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: UGHETTA, Acting P.J., and RABIN, J., dissent and vote to reverse the orders of the Appellate Term and the Civil Court and to grant the motion to vacate the service of summons upon the two defendants, with the following memorandum by RABIN
• Citation: Dobkin v. Chapman, 25 A.D.2d 745, 269 N.Y.S.2d 49 (N.Y. App. Div. 1966)
• Decision Date: 04 April 1966
• Parties: Richard DOBKIN, Respondent, v. Shirley James CHAPMAN, Jr. et al., Defendants; Motor Vehicle AccidentIndemnification Corp., Appellant.

Page 49

269 N.Y.S.2d 49

25 A.D.2d 745

Richard DOBKIN, Respondent, v. Shirley James CHAPMAN, Jr. et al., Defendants; Motor Vehicle AccidentIndemnification Corp., Appellant.

Supreme Court, Appellate Division, Second Department.

April 4, 1966.

Corner, Finn, Froeb & Charles, Brooklyn, for appellant: Wilfred R. Caron, Brooklyn, of counsel.

Joseph A. Clifford, New York City, for respondent.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages against the driver and the owner of an automobile, both allegedly uninsured and out-of-State residents, for personal injuries sustained in an accident which occurred in this State, Motor Vehicle Accident Indemnification Corporation (on behalf of itself and defendants) appeals by permission of the Appellate Term of the Supreme Court, from an order of said court, entered May 7, 1965, which affirmed an order of the Civil Court of the City of New York, Kings County, entered August 7, 1964, denying a motion by said Corporation on behalf of defendants to set aside the service of the summons and complaint upon defendants.

Order affirmed, without costs,

We affirm the findings expressed in the opinion of the Appellate Term (46 Misc.2d 260, 259 N.Y.S.2d 733). The Legislature has provided that service upon a non-domiciliary may be made in the same manner as upon a domiciliary (CPLR 302, 308, subd. 4, 313). The question at bar is whether the manner of process selected by the Civil Court accords with the due process requirements of the Federal and State Constitutions. The manner in which process may be served has heretofore always been in accord with some definite mandate of a statute. The only discretion allowed a court was to make a determination of whether the circumstances warranted employment of one statutory scheme or another. With the enactment of subdivision 4 of CPLR 308 the power of the court has been enlarged. When normal statutory methods of effecting service of process have failed, the court may now devise a method by which service may be effected. The validity of the service will hence depend on whether under the circumstances of the particular case the method chosen is in accord with due process.

We are here dealing with an automobile collision within our State. It has been noted by the Supreme Court of the United States that '(t)he potentialities of damage by a motorist, in a population as mobile as ours,' are so widespread 'that those whom he injures must have opportunities of redress against him provided only that he is afforded an opportunity to defendant himself' (Olberding v. Illinois Cent. R. Co., 346 U.S. 338, 341, 74 S.Ct. 83, 85, 98 L.Ed. 39). There is no reason to construe our statutes as requiring more.

We do not consider that it is necessary in every case that an attachment be secured within this State of property belonging to a non-domiciliary before In personam jurisdiction can be exercised. Such a rule would render the remedial effects of our current statutes nugatory. As in the present case, there rarely is any property of the motorist within the State that can be attached. Such a requirement would not be in keeping with the legislative intent of enhancing In personam jurisdiction over non-resident subject to the jurisdiction of our courts (Sixth Preliminary Report of the Committee on Practice and Procedure, N.Y.Leg.Doc. (1962) No. 8, p. 111). We are obliged to follow the legislative intent (Matter of Petterson v. Daystrom Corp. et al., 17 N.Y.2d 32, decided February 17, 1966; Matter of New York Post Corp. v. Leibowitz, 2 N.Y.2d 677, 689, 163 N.Y.S.2d 409, 418, 143 N.E.2d 256, 262). The non-domiciliary motorist strikes within the State and is then gone. Jurisdiction may be exercised over him if he has been afforded a reasonable opportunity to defend himself (Olberding v. Illinois Cent. R. Co., supra; International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95).

On the record before us, the Civil Court was correct in deciding that process sent by ordinary mail to the Aliquippa, Pennsylvania, addresses supplied by the defendant motorist at the scene of the accident would give notice to defendants of the pendency of the action. Defendants listed those addresses on the registration and driver's license. The addresses were presented to the police of our State as the correct addresses at the time of the accident. Upon inquiry, the Bureau of Motor Vehicles of Pennsylvania certified that as of March 1, 1964, the addresses given were still the current addresses of defendants. Ordinary mail directed to defendants at those addresses had not been returned to the sender. Under these circumstances, notice by ordinary mail was reasonably calculated to apprise defendants of the pendency of the action and satisfies the requirements of due process (Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306, 317, 70 S.Ct. 652, 94 L.Ed. 865; Armstrong v. Manzo, 380 U.S. 545, 550, 85 S.Ct. 1187, 14 L.Ed.2d 62).

Indeed, the course followed by defendants here, whether it be construed as a species of estoppel against a present contention of lack of jurisdiction concerning an action instituted by an injured party who relied on the genuineness of the address given (cf. Greenwood v. White, 25 A.D.2d 73, 266 N.Y.S.2d 1012 (App.Div., Third Dept.)) or as a kind of fraud which vitiates the claim of lack of jurisdiction, should not be countenanced to the detriment of the injured domiciliary who otherwise will be obliged to seek defendant out in a foreign State. Due process does not demand the impossible, but requires only the reasonable. The reasonable was the means used by the Civil Court in shaping the kind of process directed, for it can hardly be said that process directed to be served at the very address given by the party who was the driver involved in an automobile accident and who thus may fairly expect that litigation will follow is violative of his rights. We therefore affirm.

BRENNAN, HOPKINS and BENJAMIN, JJ., concur.

UGHETTA, Acting P.J., and RABIN, J., dissent and vote to reverse the orders of the Appellate Term and the Civil Court and to grant the motion to vacate the service of summons upon the two defendants, with the following memorandum by RABIN, J., in which UGHETTA, Acting P.J., concurs:

The critical question in this case is whether the Civil Court could obtain jurisdiction In personam over the two non-domiciliary defendants involved in an automobile accident within this State, by directing that the summons be served by ordinary mail at the out-of-State addresses furnished for defendants at the time of the accident, after other attempted methods of service had failed.

Plaintiff was injured in the Borough of Brooklyn on October 14, 1961, when struck by a vehicle owned by one of the defendants and operated by the other. The driver showed an operator's license and a registration indicating that defendants resided at different specified street addresses in Aliquippa, Beaver County, Pennsylvania.

In January, 1964, after plaintiff's attorney had received no response to his claim letters, and after he had started a suit against MVAIC, he gave copies of the summons and complaint to the Sheriff of Beaver County for service upon defendants. The Sheriff returned the papers with the notation 'not found'. In a letter the Sheriff stated that he had made an inquiry at the specific street addresses furnished for defendants. The parents of defendants lived at one of these street addresses and told the Sheriff that they had not heard from defendants for four years. A further investigation by a local attorney disclosed no further information. On March 19, 1964, in pursuance of section 253 of the Vehicle and Traffic Law, plaintiff's attorney attempted to serve defendants by serving the Secretary of State, but the papers used in this procedure were returned with the inscription: 'Moved, Left no address'.

With the foregoing efforts at personal and...