Summary
upholding ex parte order permitting, pursuant to section 308, service upon defendant's attorney
Summary of this case from Rampersad v. Deutsche Bank Securities Inc.Opinion
January 26, 1993
Appeal from the Supreme Court, New York County (Diane Lebedeff, J.).
We find no basis to vacate the order directing service upon defendant-appellant's attorneys pursuant to CPLR 308 (5). A showing of impracticability under CPLR 308 (5) does not require proof of actual prior attempts to serve a party under the methods outlined pursuant to subdivisions (1), (2) or (4) of CPLR 308 (see, Tremont Fed. Sav. Loan Assn. v. Ndanusa, 144 A.D.2d 660, lv dismissed 73 N.Y.2d 918). In this case, the evidence demonstrates that plaintiff had information regarding the appellant's last known residence, which is not equivalent to the actual dwelling place or usual place of abode so as to allow for service pursuant to subdivisions (2) or (4) of CPLR 308 (see, Feinstein v. Bergner, 48 N.Y.2d 234). Further, plaintiff has demonstrated that her efforts to obtain information regarding the appellant's current residence or place of abode through ordinary means, such as a motor vehicle registration search, had proven ineffectual. This sufficiently demonstrates that service under the other methods provided would be "impracticable". Contrary to defendant-appellant's argument, CPLR 320 has no application to the facts of this case, there having been no "appearance" limited or otherwise by virtue of counsel's demand for a complaint forwarded in response to the prior attempted service. We have considered defendant-appellant's other arguments and find them to be without merit.
Concur — Sullivan, J.P., Rosenberger, Wallach and Asch, JJ.