Montes v. Seda

• Decision Date: 20 May 1993
• Citation: 599 N.Y.S.2d 401,157 Misc.2d 895
• Parties: Luisa MONTES, Plaintiff, v. Myrna SEDA, Defendant.
• Court: New York Supreme Court

Page 401

599 N.Y.S.2d 401

157 Misc.2d 895

Luisa MONTES, Plaintiff, v. Myrna SEDA, Defendant.

Supreme Court, New York County,

IAS Part 12.

May 20, 1993.

Raymond B. Schwartzberg, New York City, for plaintiff.

Evans, Orr, Pacelli, Norton & Laffan, New York City, for defendant.

EDWARD H. LEHNER, Justice.

The question posed by plaintiff's motion to strike defendant's affirmative defense of lack of personal jurisdiction is whether service upon defendant at a time when she is incarcerated in a state correctional facility may be made upon her pursuant to CPLR 308(2) at the "dwelling place or usual place of abode" occupied by her prior to imprisonment.

Here the parties were allegedly involved in an automobile accident on December 1, 1989. Service upon defendant was purportedly made on October 30, 1991 by serving her adult daughter at 818 Tenth Avenue in Manhattan. After a traverse hearing, in which defendant was represented by counsel retained by the Motor Vehicle Accident Indemnification Corporation, I find that: i) service was in fact so made at a time plaintiff did not know of defendant's imprisonment; ii) that said address, which was the residence set forth on defendant's driver's license, was her last dwelling place and usual place of abode before her incarceration, which had commenced in October 1990; and iii) that the adult daughter was a "person of suitable age and discretion" to receive process. It is noted that defendant was released from prison on January 19, 1992.

Plaintiff maintains that since service was made at the address of defendant on file with the Commissioner of Motor Vehicles (the "Commissioner"), defendant is estopped from denying valid service at that location.

Case law in New York generally agrees that a licensee is estopped from challenging service of process made at the address of the motorist on file with the Commissioner at the time of service. This is true even though the licensee may have moved subsequent to the time of the accident as Vehicle and Traffic Law ("VTL") § 505(5) requires "every licensee to notify the Commissioner in writing of any change of residence ... within ten days after such change occurs and to make a notation of such change of residence on such license". See, Sherrill v. Pettiford, 172 A.D.2d 512, 567 N.Y.S.2d 859 (2d Dept.1991); Anello v. Barry, 149 A.D.2d 640, 540 N.Y.S.2d 460 (2d Dept.1989); Hill v. Jones, 113 A.D.2d 874, 493 N.Y.S.2d 603 (2d Dept.1985); contra, Marsh v. Phillips, 167 A.D.2d 905, 562 N.Y.S.2d 273 (4th Dept.1990).

Thus, the question first presented is whether VTL § 505(5) is applicable upon a change of address caused by imprisonment.

I find that since it is not contemplated that an incarcerated individual will be doing any motoring while in custody, and since there is no governmental need for the Commissioner to be kept abreast of the facility in which the prisoner is located (here defendant was in three different prisons during her 15 months of incarceration), that defendant was not required under VTL § 505(5) to advise the Commissioner of her movements into and within the correctional system. Consequently, she is not estopped, under the aforesaid case law, from maintaining that service at her prior dwelling was invalid.

On the question of due process, in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), it was said (p. 314, 70 S.Ct. p. 656):

"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."

In Robinson v. Hanrahan, 409 U.S. 38, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972), where the defendant was in jail at the time of service, the court held that the State, which knew of his imprisonment, could not obtain jurisdiction over him in a forfeiture action by merely mailing process to his home address as that was not "reasonably calculated" (at 40, 93 S.Ct. at 31) to apprise him of the pendency of the proceeding. However, in that case there was no indication of any other family member residing at that address.

Here I find that service upon defendant's daughter at the prior dwelling of the defendant was reasonably calculated to inform defendant of the pendency of this action as there was no testimony by her or her daughter that defendant's whereabouts were not then known by the daughter.

The question then remains whether defendant's residence prior to imprisonment, or the prison itself, constitutes her dwelling place or usual place of abode under the New York statutory scheme for service of process.

In Feinstein v. Bergner, 48 N.Y.2d 234, 422 N.Y.S.2d 356, 397 N.E.2d 1161 (1979), the court observed that there is a "degree of permanence and stability that is necessarily implied by the term 'usual place of abode' "(p. 239, n. 3, 422 N.Y.S.2d 356, 397 N.E.2d 1161). See also, Bernardo v. Barrett, 87 A.D.2d 832, 449 N.Y.S.2d 272 (2d Dept.1982), aff'd on op. below, 57 N.Y.2d 1006, 457 N.Y.S.2d 479, 443 N.E.2d 953 (1982); Smithtown General Hospital v. Quinlivan, 88 Misc.2d 1031, 389 N.Y.S.2d 776 (Dist.Ct.Suffolk Co.1976).

A degree of permanence and stability...