Summary
In Polansky there was an affidavit showing that the defendant was not available because he had left the address at which service was made "some time ago", whereas in the instant case the only evidence is an unsigned post-office notation that Torres had moved and left no address.
Summary of this case from Brown v. Green Bus LinesOpinion
March 9, 1965
Order, entered on October 21, 1964, striking out the complete defense of the defendant and Motor Vehicle 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. ( Bauman v. Fisher, 12 A.D.2d 32, 36.)
Concur — Rabin, J.P., Valente, McNally, Stevens and Steuer, JJ.