Santangelo, Inc. v. Brown

Appellate Division of the Supreme Court of New York

Santangelo, Inc. v. Brown

206 A.D.2d 463, 614 N.Y.S.2d 933, 1994 N.Y. App. Div. LEXIS 7490

Appellate Division of the Supreme Court of the State of New York·Decided July 18, 1994·Published·Cited by 4 cases

Opinion

In an action to foreclose upon a mechanic’s lien, the plaintiff appeals from an [464]*464order of the Supreme Court, Suffolk County (Gowan, J.), dated August 28, 1992, which granted the defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8).

Ordered that the order is affirmed, with costs.

Contrary to the plaintiff’s contention, the Supreme Court properly determined that service upon the defendant was defective because the substituted method of service was not effected at the defendant’s actual dwelling place or usual place of abode (see, CPLR 308 [4]; Burkhardt v Cuccuzza, 81 AD2d 821, 823). Further, since the record clearly indicates that the defendant did not engage in conduct calculated to prevent the plaintiff from learning his usual place of abode, he is not estopped from raising the defect in service as a jurisdictional defense (see, Feinstein v Bergner, 48 NY2d 234, 241; Esposito v Billings, 103 AD2d 956, 957). Sullivan, J. P., Lawrence, Pizzuto and Friedmann, JJ., concur.

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In an action to foreclose upon a mechanic’s lien, the plaintiff appeals from an [464]*464order of the Supreme Court, Suffolk County (Gowan, J.), dated August 28, 1992, which granted the defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8).

Ordered that the order is affirmed, with costs.

Contrary to the plaintiff’s contention, the Supreme Court properly determined that service upon the defendant was defective because the substituted method of service was not effected at the defendant’s actual dwelling place or usual place of abode (see, CPLR 308 [4]; Burkhardt v Cuccuzza, 81 AD2d 821, 823). Further, since the record clearly indicates that the defendant did not engage in conduct calculated to prevent the plaintiff from learning his usual place of abode, he is not estopped from raising the defect in service as a jurisdictional defense (see, Feinstein v Bergner, 48 NY2d 234, 241; Esposito v Billings, 103 AD2d 956, 957). Sullivan, J. P., Lawrence, Pizzuto and Friedmann, JJ., concur.

Santangelo, Inc. v. Brown, 206 A.D.2d 463, 614 N.Y.S.2d 933, 1994 N.Y. App. Div. LEXIS 7490 (N.Y. Ct. App. 1994).

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Opinion

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