Franklin v. Winard
| Decision Date | 26 January 1993 |
| Citation | 592 N.Y.S.2d 726,189 A.D.2d 717 |
| Parties | Gladys FRANKLIN, etc., Plaintiff-Respondent, v. Arthur I. WINARD, et al., Defendants, and Gudrun Israels, a/k/a Gudrun Baldi, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before SULLIVAN, J.P., and ROSENBERGER, WALLACH and ASCH, JJ.
Order, Supreme Court, New York County (Diane Lebedeff, J.), entered March 6, 1992, which, to the extent appealed from, denied defendant Israels' motion to vacate service of the summons effected by an ex parte order of said court (Xavier C. Riccobono, J.) dated January 16, 1992, permitting alternative service pursuant to CPLR 308(5), unanimously affirmed, with costs.
We find no basis to vacate the order directing service upon defendant-appellant's attorneys pursuant to CPLR 308(5). A showing of impracticability under 308(5) does not require proof of actual prior attempts to serve a party under the methods outlined pursuant to Subdivisions (1), (2) or (4) of CPLR 308 (see, Tremont Federal Savings & Loan Assoc., v. Ndanusa, 144 A.D.2d 660, 535 N.Y.S.2d 8, appeal denied 73 N.Y.2d 918, 539 N.Y.S.2d 302, 536 N.E.2d 631). In this case, the evidence demonstrates that plaintiff had information regarding the appellant's last known residence, which is not equivalent to the actual dwelling place or usual place of abode so as to allow for service pursuant to Subdivisions (2) or (4) of CPLR 308 (see, Feinstein v. Bergner, 48 N.Y.2d 234, 422 N.Y.S.2d 356, 397 N.E.2d 1161). Further, plaintiff has demonstrated that her efforts to obtain information regarding the appellant's current residence or place of abode through ordinary means, such as a motor vehicle registration search, had proven ineffectual. This sufficiently demonstrates that service under the other methods provided would be "impracticable". Contrary to defendant-appellant's argument, CPLR 320 has no application to the facts of this case, there having been no "appearance" limited or otherwise by virtue of counsel's demand for a complaint forwarded in response to the prior attempted service. We have considered defendant-appellant's other arguments and find them to be without merit.
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...prior attempts to serve a party under the methods outlined pursuant to subdivisions (1), (2) or (4) of CPLR 308” ( Franklin v. Winard, 189 A.D.2d 717, 717, 592 N.Y.S.2d 726;see Contimortgage Corp. v. Isler, 48 A.D.3d 732, 734, 853 N.Y.S.2d 162;Astrologo, 240 A.D.2d at 606, 659 N.Y.S.2d 481;......
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Morini v. Thurman
... ... "impracticable" (CPLR 308 [5]; see Kozel v ... Kozel, 161 A.D.3d 700, 701 [1st Dept 2018], Iv ... dismissed 32 N.Y.3d 1089 [2018]; Franklin ... v. Winard, 189 A.D.2d 717, 717 [1st Dept 1993]) ... Whether service by traditional methods is impracticable is a ... highly factual inquiry ... ...
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Materials Testing Lab, Inc. v. Agosto, 2007 NY Slip Op 32477(U) (N.Y. Sup. Ct. 8/3/2007)
...the methods of service outlined in CPLR 308 (1), (2), or (4),although the Plaintiff has made that showing herein(see, Franklin v. Winard, 189 A.D.2d 717, 592 N.Y.S.2d 726). Therefore, where the Plaintiff has made three or more unsuccessful attempts at three different times on three or more ......
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Morini v. Thurman
...(CPLR 308 [5]; see Kozel v. Kozel, 161 A.D.3d 700, 701 [1st Dept 2018], Iv dismissed 32 N.Y.3d 1089 [2018]; Franklin v. Winard, 189 A.D.2d 717, 717 [1st Dept 1993]). Whether service by traditional methods is impracticable is a highly factual inquiry dependent on the circumstances of a parti......