Howland v. Giorgetti

• Decision Date: 14 February 1961
• Citation: 210 N.Y.S.2d 890,12 A.D.2d 953
• Parties: Isabel HOWLAND, Susan Howland and Vivian Howland, infants, by Angel Howland, their guardian ad litem, Albertina Howland and Robert Howland, Respondents, v. John GIORGETTI, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 890

210 N.Y.S.2d 890

12 A.D.2d 953

Isabel HOWLAND, Susan Howland and Vivian Howland, infants by Angel Howland, their guardian ad litem Albertina Howland and Robert Howland, Respondents, v.John GIORGETTI, Appellant.

Supreme Court, Appellate Division, Second Department.

Feb. 14, 1961.

Evans, Orr, Gourly & Pacelli, New York City, Francis J. Marcheret, New York City, of counsel, for appellant.

Englander & Englander, New York City, Herman Englander, New York City, of counsel, for respondents.

Before NOLAN, P. J., and BELDOCK, UGHETTA, CHRIST and BRENNAN, JJ.

MEMORANDUM BY THE COURT.

In an action against a New Jersey resident to recover damages for personal injuries sustained in an automobile accident which occurred in this state, the defendant, appearing specially, appeals from an order of the Supreme Court, Queens County, dated May 20, 1960, denying his motion to vacate the service of the summons and complaint upon him.

Plaintiffs served the summons and complaint on defendant pursuant to statute(Vehicle & Traffic Law, § 253, formerly § 52).Defendant's motion to vacate was made on the ground that such service failed to comply with the statutory provisions.

Order reversed without costs and motion granted.

It appears that on June 5, 1959, three days before the expiration of the Statute of Limitations, plaintiffs, pursuant to the statute, had served a copy of the summons and complaint upon the Secretary of State; that on the same date plaintiffs, by registered mail return receipt requested, forthwith sent copies to the defendant at Cliffside Park, New Jersey; that the copies thus mailed to the defendant were later returned because defendant had moved; that on November 16, 1959, the Special Term made an order granting defendant's prior motion to vacate such service of the summons and complaint, and setting aside such service; that no appeal was taken from said order; and that thereafter, on February 2, 1960, when plaintiffs learned of the defendant's current address in Franklin Lakes, New Jersey, the plaintiffs, by registered mail return receipt requested, again mailed to him a copy of the summons and complaint.

The order presently appealed from, made May 20, 1960, denied defendant's motion to vacate such last service.In our opinion, under the circumstances here, the motion must be granted.Under the statute(Vehicle & Traffic Law, § 253, formerly § 52), in order to legally consummate the service of process upon a nonresident involved...