Moffett v. Wayne

Appellate Division of the Supreme Court of New York

Moffett v. Wayne

149 A.D.2d 572, 540 N.Y.S.2d 673, 1989 N.Y. App. Div. LEXIS 4897

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

DecidedApril 17, 1989

StatusPublished

This text of 149 A.D.2d 572 (Moffett v. Wayne) 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

Moffett v. Wayne, 149 A.D.2d 572, 540 N.Y.S.2d 673, 1989 N.Y. App. Div. LEXIS 4897 (N.Y. Ct. App. 1989).

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Opinion

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated May 5, 1987, which denied his motion to dismiss the action.

Ordered that the order is reversed, on the law, with costs, the motion is granted and the action is dismissed.

Even assuming, arguendo, that the Statute of Limitations was properly tolled pursuant to CPLR 203 (b) (5), which is not established by the record, we find that personal jurisdiction was not obtained over the defendant. The parties agree that the person served was a neighbor of the defendant. The plaintiffs’ purported service of a summons with notice pursu[573]*573ant to CPLR 308 (2) was therefore defective since delivery to a neighbor is not delivery "to a person * * * at the actual place of business, dwelling place or usual place of abode of the person to be served” (emphasis added). Thompson, J. P., Kunzeman, Eiber, Spatt and Balletta, JJ., concur.

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In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated May 5, 1987, which denied his motion to dismiss the action.

Ordered that the order is reversed, on the law, with costs, the motion is granted and the action is dismissed.

Even assuming, arguendo, that the Statute of Limitations was properly tolled pursuant to CPLR 203 (b) (5), which is not established by the record, we find that personal jurisdiction was not obtained over the defendant. The parties agree that the person served was a neighbor of the defendant. The plaintiffs’ purported service of a summons with notice pursu[573]*573ant to CPLR 308 (2) was therefore defective since delivery to a neighbor is not delivery "to a person * * * at the actual place of business, dwelling place or usual place of abode of the person to be served” (emphasis added). Thompson, J. P., Kunzeman, Eiber, Spatt and Balletta, JJ., concur.

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Bluebook (online)

149 A.D.2d 572, 540 N.Y.S.2d 673, 1989 N.Y. App. Div. LEXIS 4897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moffett-v-wayne-nyappdiv-1989.