Deas v. Brunke

Appellate Division of the Supreme Court of New York

Deas v. Brunke

199 A.D.2d 43, 604 N.Y.S.2d 569

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 7, 1993

StatusPublished

Cited by2 cases

This text of 199 A.D.2d 43 (Deas v. Brunke) 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

Deas v. Brunke, 199 A.D.2d 43, 604 N.Y.S.2d 569 (N.Y. Ct. App. 1993).

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Opinion

Order and judgment (one paper), Supreme Court, New York County (Hansel McGee, J.), entered June 11,1992, which dismissed the complaint as barred by the Statute of Limitations, unanimously reversed, on the law, without costs, defendant’s motion to dismiss the complaint is denied, and the complaint is reinstated.

On January 13, 1988 the plaintiff allegedly sustained personal injuries when her car was struck in the rear by a car owned and operated by the defendant. Defendant gave her address as Box 164A Mill Street in Putnam Valley, New York, the address listed on her temporary license. On November 13, 1990 plaintiff’s process server went to the physical address corresponding to the box number and delivered a summons and complaint to the defendant’s father. A copy of the summons was mailed to the Mill Street address the same day.

On August 26, 1991 defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the ground that the [44]*44action was barred by the Statute of Limitations, supported by proof that the Mill Street address was not her actual residence, but rather her mailing address. The IAS Court granted the motion, concluding that the summons was not delivered to a person of suitable age and discretion at defendant’s actual residence or usual place of abode as required by CPLR 308 (2).

The order and judgment appealed from must be reversed. Vehicle and Traffic Law § 505 (5) requires that a motor vehicle licensee notify the Commissioner of Motor Vehicles of any change of residence within 10 days of such change, and to make a notation of such change on the license. Vehicle and Traffic Law § 600 (1) (a) requires as here pertinent that a person involved in an accident give the number and street of his or her "residence,” not a mailing address as was given by the defendant. Plaintiff had the right to rely on the address given by the defendant, and the defendant is estopped from contesting the validity of service made upon her at such address (Sherrill v Pettiford, 172 AD2d 512; Harrington v Dickinson, 159 AD2d 876, lv dismissed 76 NY2d 935). Concur —Carro, J. P., Rosenberger, Ellerin and Kassal, JJ.

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Order and judgment (one paper), Supreme Court, New York County (Hansel McGee, J.), entered June 11,1992, which dismissed the complaint as barred by the Statute of Limitations, unanimously reversed, on the law, without costs, defendant’s motion to dismiss the complaint is denied, and the complaint is reinstated.

On January 13, 1988 the plaintiff allegedly sustained personal injuries when her car was struck in the rear by a car owned and operated by the defendant. Defendant gave her address as Box 164A Mill Street in Putnam Valley, New York, the address listed on her temporary license. On November 13, 1990 plaintiff’s process server went to the physical address corresponding to the box number and delivered a summons and complaint to the defendant’s father. A copy of the summons was mailed to the Mill Street address the same day.

On August 26, 1991 defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the ground that the [44]*44action was barred by the Statute of Limitations, supported by proof that the Mill Street address was not her actual residence, but rather her mailing address. The IAS Court granted the motion, concluding that the summons was not delivered to a person of suitable age and discretion at defendant’s actual residence or usual place of abode as required by CPLR 308 (2).

The order and judgment appealed from must be reversed. Vehicle and Traffic Law § 505 (5) requires that a motor vehicle licensee notify the Commissioner of Motor Vehicles of any change of residence within 10 days of such change, and to make a notation of such change on the license. Vehicle and Traffic Law § 600 (1) (a) requires as here pertinent that a person involved in an accident give the number and street of his or her "residence,” not a mailing address as was given by the defendant. Plaintiff had the right to rely on the address given by the defendant, and the defendant is estopped from contesting the validity of service made upon her at such address (Sherrill v Pettiford, 172 AD2d 512; Harrington v Dickinson, 159 AD2d 876, lv dismissed 76 NY2d 935). Concur —Carro, J. P., Rosenberger, Ellerin and Kassal, JJ.

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Bluebook (online)

199 A.D.2d 43, 604 N.Y.S.2d 569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deas-v-brunke-nyappdiv-1993.

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