Second Department Clarifies Law on the Validity of Service of Process When The Defendant Fails to Update Address With the DMV as Required By Law and is Served at the Outdated AddressPrint Article
- Posted on: Oct 13 2023
As previously noted in this Blog, there are two “components and constitutional predicates of personal jurisdiction.” Keane v. Kamin, 94 N.Y.2d 263, 265 (1999). “One component involves service of process, which implicates due process requirements of notice and opportunity to be heard.” Id. (citations omitted). Even though a defendant may be subject to the jurisdiction of the Court, dismissal may be sought “based on the claim that service was not properly effectuated.” Id. (citations omitted). “The other component of personal jurisdiction involves the power, or reach, of a court over a party, so as to enforce judicial decrees.” Id. (citations omitted). This requires a “constitutionally adequate connection between the defendant, the State and the action” (Id. (citations omitted)) and is beyond the scope of this article. [Personal jurisdiction and service of process have been discussed, inter alia, [here], [here], [here], [here] and [here].]
The CPLR provides numerous methods for the service of process on, inter alia, individuals, business entities and governmental entities. See CPLR §§ 307 to 318. CPLR 308 addresses service of process on individuals. The failure to serve process in “strict compliance” with the “statutory methods,” “leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void.” Nationstar Mortgage, LLC v. Gayle, 191 A.D.3d 1002 (2nd Dep’t 2021) (citations omitted). Accordingly, proper service of process, and proof thereof, is of the utmost importance. In order to serve process on an individual, for example, process servers and attorneys need to know, inter alia, the defendant’s “dwelling place or usual place of abode” to serve by substituted service under CPLR 308(2) or (4). Accordingly, public records such as DMV records are frequently used to locate potential defendants. Vehicle and Traffic Law § 505(5) requires licensees to notify the DMV of changes of address within ten days of such change. Similarly, Vehicle and Traffic Law 401(3) requires the same thing for vehicle registrations. What happens, however, if a licensee or registrant fails to update an address with the DMV, and a process server relies on the erroneous information to serve process? The law in this regard was inconsistent within and amongst the Appellate Division Departments. The Second Department, however, recently clarified the law (in the Second Department at least).
On September 13, 2023, the Appellate Division, Second Department, addressed this important issue in Castillo-Florez v. Charlecius. The plaintiff in Castillo-Florez was hit by a bus owned by the MTA and operated by the individual defendant. Plaintiff commenced a personal injury lawsuit. The individual defendant was served with process upon a person of suitable age and discretion at an address indicated in the individual defendant’s DMV records. When the individual defendant failed to appear, the plaintiff moved for a default judgment. In support of the motion, the plaintiff submitted the process server’s affidavit which contained copies of the relevant DMV records showing the outdated address. The individual defendant opposed the motion and argued that he did not default because he was never served with process and that the presumption of service arising from the process server’s affidavit was rebutted by the individual defendant’s “affidavit, in which he denied receipt of service and denied residing at the [address indicated in the DMV records] at the time service allegedly was made.”
The motion court granted the plaintiff’s motion holding that “while [the individual defendant] may not have resided at the [address on file with the DMV] as of June 2019, service upon him at that address was nevertheless permissible because [the individual defendant] had failed to update his mailing address with the DMV as required by VTL § 505(5). Additionally, the court determined that [the individual defendant]’s failure to update his address with the DMV precluded a challenge to the diligence of the process server in ascertaining [the individual defendant]’s correct address.” The individual defendant appealed, and the Second Department reversed.
As stated by the Castillo-Florez Court, the “principal question presented on this appeal is whether an individual defendant’s failure to fulfill the statutory obligation to timely notify the New York State Department of Motor Vehicles … of a change of address, standing alone, estops that defendant from contesting service of the summons and complaint made at his or her former address.” In answering the question in the negative, the Court held that “while there are circumstances where a defendant may be estopped from contesting service of process based in part on the failure to update his or her address with the DMV, such as where the defendant engages in a deliberate attempt to avoid service, the mere failure to update one’s address with the DMV, standing alone, does not automatically warrant application of the estoppel doctrine.”
In reaching its decision, the Castillo-Florez Court surveyed the varied case law on this issue. The Court noted that estoppel may be employed to “preclude a defendant ‘from challenging the location and propriety of service of process if that defendant has engaged in affirmative conduct which misleads a party into serving process at an incorrect address’” (citing Hudson Val. Bank, N.A. v. Eagle Trading, 208 A.D.3d 648, 650 (2nd Dep’t 2022), quoting Everbank v. Kelly, 203 A.D.3d 138, 145 (2nd Dep’t 2022)). [Eds. Note: this Blog discussed Everbank [here].]
As an integral part of its analysis, the Court discussed Feinstein v. Bergner, 48 N.Y.2d 234 (1979), a motor vehicle accident case. There the defendant provided an address at the scene of an accident and was served with process at that location 30 months later. The defendant, however, moved 10 months after the accident. The Court of Appeals failed to sustain service and declined to apply estoppel because the plaintiff “failed to demonstrate that [the defendant] engaged in conduct which was calculated to prevent them from learning of his new address.” (Internal quotation marks omitted, brackets in original.)
The Second Department then noted that it has applied estoppel inconsistently over the years. It has done so in motor vehicle accident cases solely because the defendant failed to timely notify the DMV of an address change. In other cases, the Court noted, a defendant’s address was not updated with the DMV and “the defendant had also engaged in affirmative conduct that [the] court viewed as a deliberate attempt to avoid notice of the action, making estoppel appropriate.” The Court also noted that it “has, at times, declined to apply estoppel where there was no evidence that the defendants had engaged in any conduct which could be viewed as a deliberate attempt to avoid service.” The Court also analyzed similar cases from other Departments.
The Second Department then recognized that:
certain of this Court’s jurisprudence in this area drifted from the original intent of Feinstein. Although Feinstein did not focus on Vehicle and Traffic Law § 505(5), nothing in that decision suggests that an individual defendant’s failure to timely update his or her address with the DMV, standing alone, mandates precluding a defendant from challenging service made at a former address. Rather, as discussed, the Court of Appeals declined to apply estoppel because the plaintiffs had failed to demonstrate that the defendant engaged in conduct calculated to prevent them from learning of his new address (see Feinstein v Bergner, 48 NY2d at 241). We find that the failure to update one’s address, by itself, should not equate with affirmative or deliberate conduct designed to avoid service, even when coupled with a defendant’s direct involvement in an accident.
The Second Department then held “that the mere failure to update one’s address with the DMV, standing alone, does not automatically equate with a deliberate attempt to avoid service and warrant estopping a defendant from challenging the propriety of service at a former address [and t]o the extent our prior decisions, including those previously cited herein, conflict with this principle, they should no longer be followed for that proposition.” (Emphasis supplied.)
As to the specific facts of Castillo-Florez, the Court found that the individual defendant did nothing to prevent the plaintiff “from learning his new address”. Nor was there any basis to conclude that the individual defendant “neglected to update his address with the DMV as part of a deliberate attempt to avoid service”. Finally, while the process server’s affidavit of service was prima facie evidence of proper service, the individual defendant “sufficiently rebutted the presumption of proper service [because i]n opposition to the plaintiff’s motion, a detailed, sworn affidavit from [the individual defendant] was submitted, in which he, inter alia, denied receipt of service, denied residing at the [address on file with the DMV] at the time service allegedly was made, and set forth the location of his address at the time of service”. Thus, the Court determined that under the circumstances, “a hearing to determine whether [the individual defendant] was properly served pursuant to CPLR 308(2) was required.”
Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.
This article is for informational purposes and is not intended to be and should not be taken as legal advice.