Olsen v. Haddad

187 A.D.2d 375, 590 N.Y.S.2d 96, 1992 N.Y. App. Div. LEXIS 13136

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1992
• Status: Published

Opinion

Order and judgment, Supreme Court, New York County (Ira Gammerman, J.), entered June 4, 1992 and July 22, 1992, respectively, which granted the motion by defendant Haddad to dismiss plaintiffs’ complaint as against him and entered judgment in favor of said defendant, unanimously affirmed, without costs.

The IAS Court properly dismissed plaintiffs’ complaint as against defendant Haddad because of plaintiffs’ failure to obtain personal jurisdiction. The envelope bearing the summons did not bear the legend "personal and confidential” as required by statute. Strict compliance with all the technical service dictates of CPLR 308 (2) is required in order to obtain jurisdiction over the defendant and omission of the legend "personal and confidential” on the envelope deprived the court of jurisdiction over defendant (Pesner v Fried, 166 AD2d 512).

We also find that the IAS Court, at the conclusion of the traverse hearing, properly rejected plaintiffs’ claim that the defendant had engaged in conduct calculated to prevent the plaintiffs from properly effecting service before the applicable Statute of Limitations had expired. Thus, defendant Haddad was not equitably estopped from asserting as an affirmative defense lack of jurisdiction (Colagrosso v Dean, 99 AD2d 669; Gilbert v Lehman, 73 AD2d 793).

We have reviewed the plaintiffs’ remaining claims and find them to be without merit. Concur—Carro, J. P., Rosenberger, Wallach and Ross, JJ.