Kathleen Donohue v. Mark J. La Pierre

Appeal from an order of the Supreme Court at Special Term (Hughes, J.), entered February 16, 1983 in Albany County, which granted defendants motion to dismiss the complaint on the ground of lack of jurisdiction and denied plaintiffs cross motion to dismiss the third and fifth affirmative defenses in defendants answer. The sole issue in this personal injury case resulting from an automobile accident is whether service of process pursuant to CPLR 308 (subd 2) was proper where the process server mailed a copy of the summons to defendant addressed to him at "1950 Central Avenue, Colonie, New York". Special Term found that since there is no post office or zip code for the Town of Colonie, New York, plaintiff failed to comply with the statute, requiring dismissal for lack of jurisdiction. It appears that defendant resided at 1950 Central Avenue, but that the correct mailing address for that street number is "Albany, New York 12205". Special Term correctly held the phrase "last known residence" specified for mailing in CPLR 308 (subd 2), to be synonomous with the term "last known address" (see Feinstein v Bergner, 48 N.Y.2d 234, 240, n 4). It is conceded that provisions of the statute must be strictly complied with to properly effectuate service (Glikman v Horowitz, 66 A.D.2d 814). This includes compliance with both delivery and mailing (Booth v Lipton, 87 A.D.2d 856). However, we do not believe that the mailing requirement of the statute is only satisfied by using the exact mailing address pursuant to the regulations and organization of the United States Postal Service. In this case, it is unquestioned that defendant lived at 1950 Central Avenue in the Town of Colonie, New York, and not in the City of Albany. Thus, the address to which the summons was mailed was correct. Special Terms decision is based on the fact that, for reasons best known to itself, the United States Postal Service does not have a post office for the Town of Colonie, but routes mail for the residents of that town through post offices in several neighboring communities. However, this does not detract from the fact that the place to which the summons was addressed was defendants last known residence. In Brownell v Feingold (82 A.D.2d 844), it was held that where, despite an error in the address, it is virtually certain that the summons will arrive at defendants last known residence, the mailing requirement of CPLR 308 (subd 2) is satisfied. In Brownell, the summons was addressed to a location in Bethpage, New York, when it should have been addressed to Old Bethpage, New York. Service was held to be proper despite the fact that the two towns are distinct and have separate post offices. In the instant case, the summons was addressed to a well-known street and town. Moreover, in opposition to defendants motion, plaintiff offered proof that two envelopes mailed to specific residences in Colonie, New York, were received despite the fact that, for purposes of the organization of the United States Postal Service, they should have been addressed to Albany, New York, and Loudonville, New York. Finally, it should be noted that, at the scene of the accident, defendant reported his address to the police as 1950 Central Avenue, Colonie, New York [99 A.D.2d 570 Page 57112222]