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THE PROCESS SERVER IN THIS FORECLOSURE ACTION WAS TOLD BY DEFENDANT’S DAUGHTER THAT HE HAD THE RIGHT ADDRESS; BUT, IN FACT, DEFENDANT DID NOT RESIDE AT THAT ADDRESS; SERVICE WAS INVALID (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Dillon, in a matter of first impression, determined the service of process in this foreclosure action was invalid. A relative of a defendant (daughter) told the process service that the address where service was made was proper, but, in fact, the defendant did not reside at that address:

This appeal presents a simple question that has not previously arisen: whether an affirmative misrepresentation by a relative of a defendant at a residential address that the address is proper, which is relied upon by a process server, may establish that service was valid, if evidence establishes that the address is not, in fact, the defendant’s actual dwelling place or usual place of abode. We hold that, under the circumstances of this action, service of process upon the defendant at an address that was not actually his dwelling place or usual place of abode was defective, notwithstanding information provided to the process server at the doorstep. * * *

For a defendant to be estopped from raising a claim of defective service, the conduct misleading the process server must be the defendant’s conduct, as distinguished from conduct of a third party … . Everbank v Kelly, 2022 NY Slip Op 00651, Second Dept 2-2-22

 

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QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE RENDERED THIS DENTAL... NO APPEAL LIES FROM DICTA (SECOND DEPT).