Spath v. Zack

• Decision Date: 04 January 2007
• Docket Number: 8478.
• Citation: 2007 NY Slip Op 00042,36 A.D.3d 410,829 N.Y.S.2d 19
• Parties: RICHARD D. SPATH, Appellant, v. DAVID A. ZACK et al., Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

36 A.D.3d 410

829 N.Y.S.2d 19

2007 NY Slip Op 00042

RICHARD D. SPATH, Appellant, v. DAVID A. ZACK et al., Respondents, et al., Defendant.

8478.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided January 4, 2007.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 26, 2005, which granted defendants' motion and cross motion for dismissal of the complaint as against Zack and Miller due to improper service and denied plaintiff's

cross motions for extensions of time to re-serve Zack and Miller, unanimously modified, on the law, defendant Zack's motion denied, and plaintiff's cross motion for an extension of time to serve defendant Miller granted, and otherwise affirmed, without costs or disbursements.

In this personal injury action arising out of a motor vehicle accident on June 7, 2001, plaintiff alleges that his vehicle was struck in the rear by vehicles owned and/or operated by defendants. The police report indicated that defendant Zack, the owner and operator of one of the vehicles, had a Connecticut address and that the address of defendant Miller, the operator of the other, was at 6 Sammis Lane in White Plains, New York.

The action was commenced by the filing of the summons and complaint on May 26, 2004. On July 27, 2004, the summons and complaint were served on Zack by service on the Secretary of State, and on July 30, the summons and complaint were mailed, by certified mail, return receipt requested, to Zack at the Connecticut address listed on the police accident report. Plaintiff filed with the court the return receipt card, signed by someone with the last name Zack and Zack answered the complaint on August 20.

On July 21, 2006, a process server effected service on Miller by affixing a copy of the summons and complaint to the door of 6 Sammis Lane and mailing a copy of the summons and complaint to her at the same address after three unsuccessful attempts to personally serve her at that address—twice on July 20 and once on July 21. Miller served her answer on August 16, 2004.

By separate motions, Zack and Miller moved to dismiss the complaint for lack of jurisdiction based on improper service of process. Zack alleged that he had not received any form of service, that he had not resided in Connecticut since 2001, when he moved to California, and that plaintiff did not file an affidavit of compliance as required by Vehicle and Traffic Law § 253. Miller claimed improper service because she had not resided at the White Plains address at which she was served since 2001, and attached a copy of a driver's license issued in January 2004 with a New York City address. Plaintiff opposed Zack's motion and Miller's cross motion, and made separate cross motions for leave to re-serve these defendants at their current addresses. The IAS court granted defendants' motion and cross motion and denied plaintiff's cross motions, concluding that plaintiff's failure to comply with the requirements of section 253 mandated dismissal of the complaint.

With respect to an action against a nonresident defendant arising out of his or her use or ownership of a motor vehicle, Vehicle and Traffic Law § 253 (2) provides that service on the Secretary of State "shall be sufficient service upon such nonresident provided that notice of such service and a copy of the summons and complaint are forthwith sent by or on behalf of the plaintiff to the defendant by certified mail or registered mail with return receipt requested. The plaintiff shall file with the clerk of the court in which the action is pending ... an affidavit of compliance herewith, a copy of the summons and complaint, and either a return receipt purporting to be signed by the defendant or a person qualified to receive his certified mail or registered mail." Plaintiff complied with this provision as to Zack by serving the Secretary of State, mailing the summons and complaint to Zack, and filing an affidavit of compliance with the return receipt. This case is thus distinguishable from Braderman v Keitz (13 AD3d 205 [2004]), upon which the motion court relied in granting Zack's motion to dismiss. In Braderman, plaintiff failed to file the affidavit that the summons was posted by ordinary mail after the certified mailing was returned unclaimed (see Vehicle and Traffic Law § 253 [2]).

Stating that he had moved from Connecticut to California more than two years prior to the commencement of the action, Zack asserts that since the Connecticut address to which the summons and complaint were sent was no longer his address, service upon him was not effected. In our view, however, the mailing to Zack's last known address, the address on the accident report, was sufficient; the return receipt signed by a person with the last name Zack constitutes presumptive evidence that the summons was received by defendant Zack or a person qualified to receive his certified or registered mail (Vehicle and Traffic Law § 253 [2]). Defendant's reliance on his move from the Connecticut address to California is also misplaced since he offers no proof that he notified Connecticut's Commissioner of Motor Vehicles of his change of address (see Conn Gen Stat §...