Glikman v. Horowitz

66 A.D.2d 814, 411 N.Y.S.2d 365, 1978 N.Y. App. Div. LEXIS 14125

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1978
• Status: Published

Opinion

In a medical malpractice action, the plaintiffs appeal from an order of the Supreme Court, Kings County, dated October 7, 1977, which denied their motion to dismiss the first defense of defendant’s answer, i.e., that the plaintiffs failed to obtain personal jurisdiction over the defendant because of improper service of process, and sustained the said defense. Order affirmed, without costs or disbursements. The sole issue raised on appeal is whether the plaintiffs obtained personal jurisdiction over the defendant pursuant to CPLR 308 (subd 2), i.e., by service of process upon a person of "suitable age and discretion” at the defendant’s actual business address, plus mailing a second copy of the summons and complaint to the defendant’s last known residence. It is undisputed that the process server mailed the second copy of the process to the defendant’s business address, which address was plainly listed in the telephone directory as an "office”. Process was never mailed to the defendant’s residence as mandated by the statute. This court has previously held that, absent the intervention of equity, such a defect cannot be disregarded as a mere procedural "irregularity” inasmuch as the statute must be strictly complied with to confer personal jurisdiction (see Chalk v Catholic Med. Center of Brooklyn & Queens, 58 AD2d 822). We have examined the record and find that there exist no grounds for the application of the doctrine of equitable estoppel (see Simcuski v Saeli, 44 NY2d 442, 448-449). Hopkins, J. P., Damiani, Gulotta and Hawkins, JJ., concur.