Deredito v. Winn

23 A.D.2d 849, 259 N.Y.S.2d 200, 1965 N.Y. App. Div. LEXIS 4314

Opinion

In an action by an infant to recover damages for personal injury, and by his father to recover damages for medical expenses and loss of services, as a consequence of the infant plaintiff having been struck in New York by an automobile owned by the defendants Winn and operated by the defendant Mullins, the defendants Winn, appearing specially through attorneys designated by the MVAI-C (Insurance Law, § 606, subd. [e]), appeal from an order of the Supreme Court, Kings County, entered September 14, 1964, which denied their motion to vacate the service upon them of a summons and complaint pursuant to a prior ex parte court order authorizing service of process upon the said defendants by publication in two named newspapers in the City of Detroit, Michigan. No local attachment of any property of either defendant was effected. Order reversed, without costs; motion granted; and service of the summons and complaint upon the defendants Winn vacated. In our opinion, under the facts and circumstances of this action — which is one to recover money damages only from out-of-State tort-feasors by reason of their alleged negligence — it must be held that article 3 of the CPLR docs not authorize service by publication upon the two nondomiciliary defendants Winn, where: (a) no prior attachment of their property in this State has occurred; and ,(b) a finding could not properly be made that service by publication would give notice to them of the action and an opportunity to defend themselves. It appears from the record that their correct street address at the time of the making of the ex parte order was unknown to the plaintiffs and to the Sheriff of Wayne County, Michigan, as well as to the Michigan Motor Vehicle Bureau where their car had previously been registered. Nor was there any proof that these defendants actually resided in Detroit when the publication was made. Christ, Acting P. J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.