SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
688
CA 13-02022
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.
JOSEPH OLSCAMP, PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
JANEANNE E. FASCIANO, DEFENDANT,
AND C.M. MENDETTA, JR., DEFENDANT-RESPONDENT.
WALSH, ROBERTS & GRACE, BUFFALO (JOSEPH H. EMMINGER, JR., OF COUNSEL),
FOR PLAINTIFF-APPELLANT.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (NANCY A. LONG OF COUNSEL),
FOR DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Niagara County
(Richard C. Kloch, Sr., A.J.), entered April 12, 2013. The order
granted the motion of defendant C.M. Mendetta, Jr., to dismiss the
complaint against him pursuant to CPLR 3211 (a) (8).
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Plaintiff appeals from an order that granted the
motion of C.M. Mendetta, Jr. (defendant) to dismiss the complaint
against him pursuant to CPLR 3211 (a) (8) based on improper service of
the summons and complaint. We affirm. We reject plaintiff’s
contention that the “nail and mail” service upon defendant’s last
known address was proper. That method of service “requires that the
summons be affixed to the door of the defendant’s ‘actual place of
business, dwelling place or usual place of abode’ ” (Kalamadeen v
Singh, 63 AD3d 1007, 1008, quoting CPLR 308 [4]). “Although the
required subsequent mailing to the defendant’s last known residence
will suffice for the second element of service under CPLR 308 (4),
affixing process to the door of the defendant’s last known residence
will not be sufficient to meet the first element of [CPLR 308 (4)]”
(id.; see Feinstein v Bergner, 48 NY2d 234, 239). We reject
plaintiff’s further contention that defendant should be estopped from
raising defective service as a defense inasmuch as there is no
evidence in the record that defendant “engage[d] in conduct calculated
to prevent plaintiff from learning his new address” (Seiler v Ricci’s
Towing Servs., 227 AD2d 920, 921; see Marsh v Phillips, 167 AD2d 905,
905-906).
Entered: June 20, 2014 Frances E. Cafarell
Clerk of the Court