Donohue v. La Pierre

• Court: New York Supreme Court — Appellate Division
• Citation: Donohue v. La Pierre, 471 N.Y.S.2d 396, 99 A.D.2d 570 (N.Y. App. Div. 1984)
• Decision Date: 12 January 1984
• Parties: Kathleen DONOHUE, Appellant, v. Mark J. LA PIERRE, Respondent.

Page 396

471 N.Y.S.2d 396

99 A.D.2d 570

Kathleen DONOHUE, Appellant, v. Mark J. LA PIERRE, Respondent.

Supreme Court, Appellate Division Third Department.

Jan. 12, 1984.

Adams & Justice, P.C., Albany (John B. Justice, Albany, of counsel), for appellant.

Stephen R. Spring, Albany (Cynthia S. LeFave, Albany, of counsel), for respondent.

Before MAHONEY, P.J., and CASEY, YESAWICH, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term 117 Misc.2d 148, 457 N.Y.S.2d 737, entered February 16, 1983 in Albany County, which granted defendant's motion to dismiss the complaint on the ground of lack of jurisdiction and denied plaintiff's cross motion to dismiss the third and fifth affirmative defenses in defendant's answer.

The sole issue in this personal injury case resulting from an automobile accident is whether service of process pursuant to CPLR 308 (subd. 2) was proper where the process server mailed a copy of the summons to defendant addressed to him at "1950 Central Avenue, Colonie, New York". Special Term found that since there is no post office or zip code for the Town of Colonie, New York, plaintiff failed to comply with the statute, requiring dismissal for lack of jurisdiction. It appears that defendant resided at 1950 Central Avenue, but that the correct mailing address for that street number is "Albany, New York 12205". Special Term correctly held the phrase "last known residence" specified for mailing in subdivision 2 of CPLR 308, to be synonomous with the term "last known address" (see Feinstein v. Bergner, 48 N.Y.2d 234, 240, n. 4, 422 N.Y.S.2d 356, 397 N.E.2d 1161).

It is conceded that provisions of the statute must be strictly complied with to properly effectuate service (Glikman v. Horowitz, 66 A.D.2d 814, 411 N.Y.S.2d 365). This includes compliance with both delivery and mailing (Booth v. Lipton, 87 A.D.2d 856, 449 N.Y.S.2d 289). However, we do not believe that the mailing requirement of the statute is only satisfied by using the exact mailing address pursuant to the regulations and organization of the United States Postal Service. In this case, it is unquestioned that defendant lived at 1950 Central Avenue in the Town of Colonie, New York, and not in the City of Albany. Thus, the address to which the summons was mailed was correct. Special Term's decision is based on the fact that, for reasons best known to itself, the United States Postal Service does not have a post office for the Town of Colonie, but routes mail for the residents of that town through post offices in several neighboring communities. ^* However, this does not detract from the fact that the place to which the summons was addressed was defendant's last known residence.

In Brownell v. Feingold, 82 A.D.2d 844, 440 N.Y.S.2d 57, it was held that where, despite an error in the address, it is virtually certain that the summons will arrive at defendant's last known residence, the...