Cohen v. Shure

153 A.D.2d 35, 548 N.Y.S.2d 696, 1989 N.Y. App. Div. LEXIS 15650
CourtAppellate Division of the Supreme Court of the State of New York
DecidedDecember 11, 1989
StatusPublished
Cited by5 cases

This text of 153 A.D.2d 35 (Cohen v. Shure) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cohen v. Shure, 153 A.D.2d 35, 548 N.Y.S.2d 696, 1989 N.Y. App. Div. LEXIS 15650 (N.Y. Ct. App. 1989).

Opinion

OPINION OF THE COURT

Lawrence, J.

This appeal involves the statutory requirements which must [37]*37be met when serving process on an individual pursuant to CPLR 308 (2).

On or about March 10, 1986, the plaintiff purportedly commenced this action, alleging podiatric malpractice, by service of a summons and verified complaint on the defendant. The defendant interposed an answer to that summons and complaint which included the affirmative defense of lack of personal jurisdiction.

Apparently, in order to cure the allegedly defective service, on or about October 14, 1986, the plaintiff’s attorney allegedly served the pleadings, again pursuant to CPLR 308 (2), by delivering the process to the doorman of the defendant’s apartment house and by mailing a copy of the pleadings to the defendant’s last known residence by certified mail, return receipt requested. When the defendant did not re-serve his answer, the plaintiff moved, inter alia, for leave to enter a default judgment on the ground that the defendant had not responded to the process served on October 14, 1986. The defendant cross-moved to dismiss the complaint, inter alia, on the ground that the October 14, 1986, service was not in compliance with CPLR 308 (2).

After a hearing, the Supreme Court denied the plaintiff’s motion and granted the defendant’s cross motion on the ground that the plaintiff had not complied with the mailing requirement set forth in CPLR 308 (2). The court specifically found that CPLR 308 (2) required that the mailing was to be 'by first-class mail and that mail sent certified, return receipt requested, did not comply with the statutory requirement. Upon granting the plaintiff’s motion for reargument, the Supreme Court adhered to its original determination, and, thereafter, a judgment was entered in favor of the defendant and against the plaintiff dismissing the complaint.

CPLR 308 (2) provides, in pertinent part, that

"[personal service upon a natural person shall be made * * *
"2. by delivering the summons * * * to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by * * * mailing the summons to the person to be served at his or her last known residence”.

Contrary to the Supreme Court’s determination, the mailing of the process to the defendant’s last known residence by certified mail, return receipt requested, met the mailing [38]*38requirement in CPLR 308 (2). The statute does not provide for the use of any particular class of mail when the process is mailed to the defendant’s last known residence. CPLR 308 (2) was amended, effective July 15, 1987, to provide that the summons may be mailed by first-class mail to the person to be served at his actual place of business (L 1987, ch 115, § 1). However, this amendment did not affect the provision for mailing to the defendant’s residence and hence is not applicable to this case. In any event, in this case the summons and complaint were sent by first-class mail (see, 39 CFR part 3001, subpart C, Appendix A, Classification Schedule 100—First-Class Mail § 100.011). Moreover, the use of the "certified” and "return receipt” services, which are available for first-class mail (see, 39 CFR part 3001, subpart C, Appendix A, Classification Schedule SS-5—Certified Mail §§ 5.020, 5.040 [b]) are not prohibited when the mailing is made to the defendant’s last known residence.

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Cite This Page — Counsel Stack

Bluebook (online)
153 A.D.2d 35, 548 N.Y.S.2d 696, 1989 N.Y. App. Div. LEXIS 15650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-shure-nyappdiv-1989.