Manocchio v. Narain

144 A.D.2d 1022

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1988
• Status: Published

Opinion

Order unanimously reversed on the law with costs and defendants’ motion granted. Memorandum: Following a hearing on defendants’ motion to vacate a default judgment of foreclosure, County Court determined that service upon defendant Edna Narain was effective pursuant to CPLR 308 (1). We reverse and grant the motion. Even accepting the testimony of the process server that Edna was at home when he made service, a claim she vigorously disputes, his testimony did not establish valid service upon her. At best, she was glimpsed only briefly and was not in the proximity and view of her husband when he was served. The Court of Appeals has held that personal delivery is required, and "[n]otice received by means other than those authorized by statute does not bring a defendant within the jurisdiction of the court” (Macchia v Russo, 67 NY2d 592, 595). The facts do not come within the narrow exception discussed in Espy v Gloriando (85 AD2d 652, affd 56 NY2d 640). No claim is made that service was valid under CPLR 308 (2). (Appeal from order of Erie County Court, D’Amico, J. — vacate judgment.) Present —Doerr, J. P., Boomer, Green, Pine and Davis, JJ.