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WHEN SERVICE OF PROCESS IS MAILED TO A BUSINESS ADDRESS, AS OPPOSED TO A RESIDENTIAL ADDRESS, THE ENVELOPE SHOULD NOT INDICATE THE CONTENTS ARE LITIGATION-RELATED; HERE THE DEFENDANT’S ADDRESS WAS BOTH HIS RESIDENTIAL AND HIS BUSINESS ADDRESS AND THE ENVELOPE INDICATED THE CONTENTS WERE LITIGATION-RELATED; THE RESIDENTIAL MAILING RULES APPLIED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, determined CPLR 308(2) was not violated by mailing the foreclosure summons and complaint to defendant in an envelope which indicated the contents were litigation-related. Although the address to which the documents were mailed was defendant’s business address, it also served has his residential address. The envelope-restrictions only apply to a mailing to a business address. In a matter of first impression, the First Department held the residential-address mailing-rules, not the business-address mailing restrictions, applied and CPLR 308(2) was not violated:

Defendant’s argument that where a dual purpose exists the business mailing restrictions prohibiting litigation-related markings on the envelope take precedence over the residential mailing conditions is untenable. This position would improperly render meaningless one provision in favor of the other for no apparent reason other than to benefit one side over the other … . … [A] close reading of CPLR 308(2)’s mailing requirements reveals an alternative construction that would resolve this interesting dilemma … . The placement of the phrase “last known residence” before the phrase “actual place of business” signals the Legislature’s clear intent to deem mailing to a defendant’s residence to be primary over a place of business. Indeed, the legislative history for the 1987 amendment to CPLR 308(2) strongly supports this reasoning … . The amendment providing for mailing to a place of business was to ameliorate the inability to locate a defendant’s residence. Thus, mailing to a residential address is primary over a mailing to a place of business, an option that was intended to be secondary in effectuating service of process. Based on the foregoing, where a defendant’s address is both residential and a place of business, the address may be deemed as a residential one in the affidavit of service, permitting a mailing in accordance with CPLR 308(2)’s residential mailing requirements. Under these circumstances, the mailing … did not violate CPLR 308(2)’s mailing requirements…. . AMK Capital Corp. v Plotch, 2024 NY Slip Op 03324, First Dept 6-18-24

Practice Point: Where a defendant’s mailing address is both a business address and a residential address, the CPLR 308(2) “business address” rule, i.e., the envelope must not indicate the contents are litigation-related, does not apply.

 

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