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140 A.D.2d 162

Townsend v. Hanks

Appellate Division of the Supreme Court of the State of New York · decided 1988-05-03

Decided 1988-05-03

Smith, J.,

¶1dissents in a memorandum as follows: I dissent because service was not properly made pursuant to CPLR 308 (2). That section reads, in part, as follows:

"Personal service upon a natural person shall be made by any of the following methods
"2. by delivering the summons within the state to a person *164of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by mailing the summons to the person to be served at his last known residence”.

¶2In this case it is undisputed that the process server left a summons and complaint on the desk of the telephone operator at the offices of defendant Goldome Bank where defendant Hanks was employed. Subsequently, a summons and complaint were mailed not to the residence of defendant Hanks in Amityville, New York, but to his post-office box in North Wantagh, New York. This mailing to a post-office box did not comply with CPLR 308 (2). A residence is defined as a place in which a person resides or a dwelling place or abode (Chalk v Catholic Med. Center, 58 AD2d 822, 824 [2d Dept 1977]). This case falls squarely within the admonition of the Court of Appeals that the receipt of actual notice of a suit does not cure a defect "since notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court” (Feinstein v Bergner, 48 NY2d 234, 241 [1979]).

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