Yarusso v. Arbotowicz

• Decision Date: 05 April 1977
• Citation: 41 N.Y.2d 516,362 N.E.2d 600,393 N.Y.S.2d 968
• Court: New York Court of Appeals Court of Appeals
• Parties: , 362 N.E.2d 600 Antonio P. YARUSSO, Respondent, v. Stanley ARBOTOWICZ, Appellant.

Page 968

393 N.Y.S.2d 968

41 N.Y.2d 516, 362 N.E.2d 600

Antonio P. YARUSSO, Respondent, v.Stanley ARBOTOWICZ, Appellant.

Court of Appeals of New York.

April 5, 1977.

A. Paul Goldblum, Forest Hills, for appellant.

Stephen a. Fritz, Mineola, for respondent.

JONES, Judge.

We hold that when statutory authorization exists for obtaining personal jurisdiction by some manner other than personal delivery of the summons within the State--here, sections 253and254 of the Vehicle and Traffic Law--the Statute of Limitations is not tolled under CPLR 207 by defendant's absence from the State, even though plaintiff may in fact be unsuccessful in obtaining jurisdiction by the manner so provided.Further, uncompleted service under the Vehicle and Traffic Lawsections on the Secretary of State, successfully challenged by defendant for lack of personal jurisdiction, does not stop the running of the limitation period.

The present action stems from an automobile accident that occurred on November 24, 1968 in Nassau County.Although defendant was a resident of New York at the time of the accident, in November, 1970he left the State on the vessel Moonmist and traveled to the State of Florida where he resided on the vessel, moored at a North Miami Beach marina, until February, 1971, when he moved to an apartment at 3586 North West 43rd Street, Miami, where he remained until the following February.Other than for a brief visit to New York in February, 1972, defendant never returned to this State until January, 1974, when he took up the residence he has since maintained with his father at Port Washington.

Plaintiff made several attempts to secure jurisdiction over defendant for a personal injury action.On September 29, 1971, pursuant to the provisions of sections 253and254 of the Vehicle and Traffic Law, he sent the summons and complaint to the New York Secretary of State and mailed copies by registered mail, return receipt requested, to defendant at the North Miami Beach marina.Because defendant had left the Moonmist seven months earlier, the envelope addressed to him was returned marked 'Return to sender, Not here.Unknown'.On November 22, 1971plaintiff again sought to obtain jurisdiction by resort to the Vehicle and Traffic Law provisions, this time addressing copies of the papers mailed to the Secretary of State to defendant at '3586 North West 41st Street, Miami, Florida'.This latter mailing was returned by the Postal Service marked 'addressee unknown', for, as noted, defendant resided on 43rd Street, not 41st Street, in Miami.

When, on May 15, 1974, plaintiff moved for default judgment on the basis of defendant's failure to respond to the service purportedly made in compliance with the Vehicle and Traffic Law provisions in 1971, defendant successfully cross-moved for dismissal of the action for lack of personal jurisdiction on the ground that that service on him was never completed.No appeal was ever taken from the dismissal of this first action for want of personal jurisdiction.

While these cross motions were pending, on July 9, 1974 a summons and complaint were personally served on defendant at his then New York residence.Defendant then moved for summary judgment dismissing the second action, predicated on the service within the State on July 9, 1974, on the ground that it was time-barred.The denial of that motion by Special Term was affirmed at the Appellate Division, which then granted leave to appeal to our court, certifying a question whether its order of affirmance was properly made.We conclude that the dispositions by the courts below were erroneous and that defendant is entitled to summary judgment dismissing the present action.

CPLR 207, on which plaintiff relies for his claims of tolling of the three-year Statute of Limitations otherwise applicable here and of the timeliness of the present action, contains a provision by which the section--which tolls the Statute of Limitations during substantial absence of the defendant from the State--is made inapplicable 'while jurisdiction over the person of the defendant can be obtained without personal delivery of the summons to him within the state'(subd. 3).The present case comes squarely within this language, with the result that the benefit of the statutory toll is not available to plaintiff.

At least two methods of obtaining personal jurisdiction over this defendant, without personal delivery of process within the State, were available to plaintiff.Because the alleged negligence of defendant in the operation of a motor vehicle was a tortious act committed within the State, personal jurisdiction could have been acquired under CPLR 313 and 302 by service in Florida, after defendant had transferred his residence there, in any manner in which service can be made in this State.Alternatively, plaintiff could have elected--as he did--to pursue the method of service provided by the Vehicle and Traffic Law for claims arising from automobile accidents occurring in this State.The fact that plaintiff's investigation was not adequate to uncover defendant's correct addresses made means and methods of out-of-State service no less available to plaintiff for the purpose of CPLR 207(subd. 3).

It has been suggested that the words 'jurisdiction over the person * * * can be obtained' in CPLR 207(subd.3) should be read as contemplating effective service in fact (or at least a substantial practical expectation that service can be effected), rather than merely the availability of an authorized method of service by which personal jurisdiction could be obtained.We reject what appears to us to be the too narrow reading of the statutory language implicit in this suggestion.The only conclusive test, of course, as to whether jurisdiction could be obtained in the operational sense would be whether in fact it Had been obtained in the particular instance.Had that been the legislative intentsubdivision 3 would have been purposeless; tolling of a Statute of Limitations in that sense always occurs when jurisdiction is obtained.The broader, literal interpretation requiring only the availability of an authorized method of service comports with the treatment accorded resident defendants and conforms to policy considerations.As a matter of principle, considering the availability and practicality of long-arm jurisdiction, we see no reason to differentiate among resident, nonresident and former resident defendants.In general it is not significantly more difficult (if indeed it is more difficult at all) to locate persons residing outside the State of New York than those within its borders.

Accordingly, we are in agreement to the extent indicated with the position taken in Goodemote v. McClain, 40 A.D.2d 22, 337 N.Y.S.2d 79, but rejected by Special Term and the Appellate Division in this case, that the availability of statutory methods of acquiring personal jurisdiction other than by personal delivery within the State makes inapplicable the tolling provisions of CPLR 207.

Both courts below proceeded further to state that under Sadek v. Stewart, 38 A.D.2d 655, 327 N.Y.S.2d...