Wilensky v. Bergner, 43 N.Y.2d 663 (1977)
For substitute service under CPLR 308(4) to be valid, the summons must be affixed to the door of the defendant’s actual dwelling place or usual place of abode, and mailing the summons to the defendant’s last known residence is insufficient if the affixing is done at the last known residence instead of the current dwelling.
Summary
This case clarifies the requirements for “nail and mail” service under New York’s CPLR 308(4). The plaintiffs attempted to serve the defendant by affixing a summons to his parents’ address, his last known residence, after he had moved. The Court of Appeals held that service was invalid because the statute requires the summons to be affixed to the defendant’s actual dwelling place or usual place of abode, not merely the last known residence, even though the defendant ultimately received actual notice. The decision emphasizes the importance of strict compliance with the statute to ensure proper notice.
Facts
Pauline and Martin Wilensky were injured in an automobile accident caused by Bergner on April 2, 1972. At the time of the accident, Bergner lived with his parents at 76 Aster Court. Approximately 30 months later, the Wilenskys attempted to sue Bergner by affixing the summons and complaint to the door of 76 Aster Court on August 27, 1974, and mailing copies to that address on August 29, 1974. Bergner had moved from his parents’ home in February 1973 and established a new residence at 2729 West 33rd Street.
Procedural History
The defendant moved to dismiss the action, arguing ineffective service. Special Term initially denied the motion, finding due diligence and estopping the defendant due to his father mailing the summons. The Appellate Division reversed, finding the substitute service defective and no basis for estoppel without fraud by the defendant. The plaintiffs appealed to the New York Court of Appeals.
Issue(s)
Whether the “nail and mail” service under CPLR 308(4) was valid when the summons was affixed to the defendant’s last known residence but not his actual dwelling place or usual place of abode.
Holding
No, because CPLR 308(4) requires the summons to be affixed to the defendant’s actual dwelling place or usual place of abode, and merely mailing it to the last known residence, without proper affixing, is insufficient.
Court’s Reasoning
The court emphasized the statutory language of CPLR 308(4), which requires affixing the summons to the door of the defendant’s “actual place of business, dwelling place or usual place of abode” and mailing it to the “last known residence.” The court rejected the argument that “dwelling place” and “last known residence” could be equated. The court reasoned that the Legislature intentionally retained these distinct requirements to ensure actual notice to defendants, balancing the need for effective service with the prevention of “sewer service.” The court stated that blurring the distinction between “dwelling place” and “last known residence” would diminish the likelihood that potential defendants receive actual notice. The court noted, “While a rule which permits both the ‘nailing’ and ‘mailing’ steps to be completed at a defendant’s last known residence would make it infinitely easier to serve the ‘hard-to-find’ defendant, such a rule would not ensure that a readily accessible defendant is given adequate notice.” Furthermore, the court held that receiving actual notice through means other than those authorized by statute does not cure the defect in service. Finally, the court declined to apply the estoppel doctrine because the defendant had no affirmative duty to keep potential plaintiffs informed of his whereabouts, citing Dobkin v. Chapman, 21 N.Y.2d 490, 504. The court found no conduct by the defendant calculated to prevent the plaintiffs from learning his new address.