Dominion of Canada General Ins. Co. v. Pierson

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: STALEY
• Citation: Dominion of Canada General Ins. Co. v. Pierson, 280 N.Y.S.2d 296, 27 A.D.2d 484 (N.Y. App. Div. 1967)
• Decision Date: 31 May 1967
• Parties: The DOMINION OF CANADA GENERAL INSURANCE COMPANY, Appellant, v. William M. PIERSON, Respondent.

Page 296

280 N.Y.S.2d 296

27 A.D.2d 484

The DOMINION OF CANADA GENERAL INSURANCE COMPANY, Appellant, v. William M. PIERSON, Respondent.

Supreme Court, Appellate Division, Third Department.

May 31, 1967.

O'Connell & Wolfe, Plattsburgh (Louis E. Wolfe, Plattsburgh, of counsel), for plaintiff-appellant.

Bower, O'Connor & Taylor, New York City (John Gardner, New York City, of counsel), for defendant-respondent.

Before GIBSON, P.J., and and HERLIHY, REYNOLDS, AULISI, and STALEY, JJ.

STALEY, Justice.

The plaintiff appeals from an order of the Supreme Court, County of Clinton entered on the 29th day of November, 1966, granting defendant's motion to dismiss the complaint.

On or about the 5th day of March 1963, William G. DeBelle and his wife were injured in an automobile accident on Route 22 in Clinton County New York. The plaintiff paid their medical and hospital expenses in the amount of $2487.64 and, as their subrogee, sought to commence an action against the defendant, the owner and driver of the automobile, involved in the accident.

On or about the 23d day of February 1966, the plaintiff's attorneys, pursuant to CPLR 203(b)(4), delivered a summons returnable in the Supreme Court, Clinton County to the Sheriff in Clinton County directing 'that the same be served upon William M. Pierson, Jenkins Street, Peru, New York,' that being his address as listed on a police report of the accident. The sheriff was unable to effect service since the defendant was no longer a resident in Peru, New York. Thereafter, and on or about the 22nd day of April 1966, service was made upon the Secretary of State pursuant to the provisions of §§ 253 and 254 of the Vehicle and Traffic Law. On April 21, the plaintiff's attorneys mailed a copy of the summons and complaint to the defendant, registered mail return receipt requested, at his last known address, being Jenkins Street, Peru, New York. Plaintiff's attorneys thereafter ascertained that the defendant had moved to the State of Oregon in the month of February 1964, and, on May 23, 1966, mailed a second set of papers to the defendant pursuant to the provisions of §§ 253 and 254 of the Vehicle and Traffic Law. Proof of service was filed in the Clinton County Clerk's Office on the 6th day of June 1966.

Notice of motion to dismiss the complaint was dated July 22, 1966. The defendant thereafter moved, pursuant to CPLR 3211, to dismiss the complaint on the ground that 'the action was not timely brought within the statute of limitations covering the plaintiff's cause of action.' Special Term granted the motion and dismissed the complaint on the basis that the plaintiff's papers were not 'forthwith' mailed to the defendant as required by §§ 253 and 254 of the Vehicle and Traffic Law, and apparently on the further basis that, although the defendant did not move to dismiss the complaint upon the ground that the court had no jurisdiction of the person of the defendant because of the incorrect mailing, this defense remained available to the defendant by way of defense in his answer by reason of the 1964 amendment of 320(b) of the CPLR, effective September 1, 1964.

CPLR 320(b) provides as follows:

(b) When appearance confers personal jurisdiction, generally. Subject to the provisions of subdivision (c), an appearance of the defendant is equivalent to personal service of the summons upon him, unless an objection to jurisdiction under paragraph eight of subdivision (a) of rule 3211 is asserted by motion or in the answer as provided in rule 3211.

CPLR 3211 provides as follows:

(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: * * *

5. the cause of action may not be maintained because of * * * statute of limitations * * *.

8. the court has not jurisdiction of the person of the defendant; * * *.

(e) * * * An objection based upon a ground specified in paragraphs eight or nine of subdivision (a) is waived if a party moves on any of the grounds set forth in subdivision (a) without raising such objection or if, having made no objections under subdivision (a), he does not raise such objection in the responsive pleading. * * *.

The above sentence from CPLR 3211(e)...