Polansky v. Paugh

Appellate Division of the Supreme Court of New York

Polansky v. Paugh

23 A.D.2d 643, 256 N.Y.S.2d 961, 1965 N.Y. App. Div. LEXIS 4714

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

DecidedMarch 9, 1965

StatusPublished

Cited by5 cases

This text of 23 A.D.2d 643 (Polansky v. Paugh) 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.

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Polansky v. Paugh, 23 A.D.2d 643, 256 N.Y.S.2d 961, 1965 N.Y. App. Div. LEXIS 4714 (N.Y. Ct. App. 1965).

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Opinion

Order, entered on October 21, 1964, striking out the complete defense of the defendant and Motor Yehicle Accident Indemnification Corporation, unanimously reversed, on the law, with $30 costs and disbursements to appellant, and the motion to strike the same is denied. Where personal service with due diligence cannot be made as provided by CPLR 308 (subd. 1), service can be made under subdivision 3 “by mailing the summons to the person to be served at his last known residence and either affixing the summons to the door of his place of business, dwelling house or usual place of abode within the state”. There has been no compliance with the statute since the affidavit of substituted service shows that defendant was not available because he had left the address, 116 Henry Street, Binghamton, New York, “some time ago.” Where it appears prior to the attempted substituted service the defendant does not reside at the stated address, due process is not satisfied because there is no reasonable probability of notice to the defendant of the pending action. (Barman v. Fisher, 12 A D 2d 32, 36.) Concur — Rabin, J. P., Yalente, McNally, Stevens and Steuer, JJ.

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Order, entered on October 21, 1964, striking out the complete defense of the defendant and Motor Yehicle Accident Indemnification Corporation, unanimously reversed, on the law, with $30 costs and disbursements to appellant, and the motion to strike the same is denied. Where personal service with due diligence cannot be made as provided by CPLR 308 (subd. 1), service can be made under subdivision 3 “by mailing the summons to the person to be served at his last known residence and either affixing the summons to the door of his place of business, dwelling house or usual place of abode within the state”. There has been no compliance with the statute since the affidavit of substituted service shows that defendant was not available because he had left the address, 116 Henry Street, Binghamton, New York, “some time ago.” Where it appears prior to the attempted substituted service the defendant does not reside at the stated address, due process is not satisfied because there is no reasonable probability of notice to the defendant of the pending action. (Barman v. Fisher, 12 A D 2d 32, 36.) Concur — Rabin, J. P., Yalente, McNally, Stevens and Steuer, JJ.

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23 A.D.2d 643, 256 N.Y.S.2d 961, 1965 N.Y. App. Div. LEXIS 4714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/polansky-v-paugh-nyappdiv-1965.

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