Marsh v. Phillips
| Decision Date | 16 November 1990 |
| Docket Number | No. 1,1 |
| Citation | 167 A.D.2d 905,562 N.Y.S.2d 273 |
| Parties | Robert MARSH, Respondent, v. David PHILLIPS, Robert P. Phillips, and Rita D. Phillips, Individually and as Parents and Natural Guardians of David Phillips, Defendants, and Joseph Stasio and Frank A. Stasio and Rita A. Stasio, Individually, and as Parents and Natural Guardians of Joseph Stasio, Appellants. Appeal |
| Court | New York Supreme Court — Appellate Division |
Bouvier, O'Connor by Chris Trapp, Buffalo, for appellants in appeal No. 1.
Robert J. Lane, Sr., Buffalo, for respondent in appeals Nos. 1 and 2.
Before DILLON, P.J., and DENMAN, PINE, LAWTON and DAVIS, JJ.
Defendants appeal from orders denying their respective motions to dismiss the complaint in plaintiff's action to recover for personal injuries. All defendants contend that, because two years earlier the action had been dismissed on default for plaintiff's failure to serve a complaint pursuant to defendants' demand, and because plaintiff had failed to move to vacate the default, recommencement of the action was barred by the Statute of Limitations (CPLR 205[a], and by principles of res judicata. Additionally, defendant Joseph Stasio contends that the complaint must be dismissed against him for lack of personal jurisdiction.
Service upon Joseph Stasio was ineffective. In support of his claim of lack of personal jurisdiction, Joseph Stasio presented his affidavit and those of his mother and father. All three unequivocally averred that Joseph no longer resided at 226 Wilmington at the time plaintiff attempted to serve him there. The affidavit of plaintiff's attorney, who averred that his check of motor vehicle records revealed that Stasio continued to list his address as 226 Wilmington, failed to raise a question of fact concerning Stasio's actual residence at the time of service. Joseph Stasio is not estopped from raising the defect in service as a defense. He did not engage in conduct calculated to prevent plaintiff from learning his new address; he merely neglected to contact authorities to inform them of his change of address. "Since potential defendants ordinarily have no affirmative duty to keep those who might sue them abreast of their whereabouts" (Feinstein v. Bergner, 48 N.Y.2d 234, 241-242, 422 N.Y.S.2d 356, 397 N.E.2d 1161), there is no basis upon which to invoke an estoppel against Joseph Stasio.
Addressing the contentions of the remaining defendants, we find that plaintiff properly and timely...
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