Washington Mut. Bank v Murphy, 2015 NY Slip Op 03520 (2d Dept. 2015)
(1) “According to the affidavit of service, a copy of the summons and complaint was served at the Noyack property upon ” JOHN DOE’ (NAME REF– USED), CO-TENANT” on May 26, 2007, which was the Saturday of Memorial Day weekend. A separate copy of the summons and complaint was thereafter mailed to Murphy at the Noyack property on May 30, 2007. ”
(2) Since, under the circumstances of this case, the Noyack property, although Murphy’s vacation home, could properly be characterized as his dwelling place or usual place of abode (see Krechmer v Boulakh, 277 AD2d 288, 289), we agree with the Supreme Court that the plaintiff satisfied the first prong of CPLR 308(2) by a fair preponderance of the evidence by serving process upon a person of suitable age and discretion at the Noyack property (see Bank of N.Y. v Espejo, 92 AD3d 707, 708; Roldan v Thorpe, 117 AD2d 790, 791).
(3) However, the plaintiff failed to meet its burden of proof that its mailing of copies of the summons and complaint to that same address satisfied the second prong of CPLR 308(2). The undisputed evidence demonstrated that the plaintiff received notice from Murphy that the Reade Street address was to be used with respect to all notices concerning the Noyack property…
Further, Murphy demonstrated that his driver’s license and his voter registration were based upon the Reade Street address, and that the Noyack property was not claimed as his primary residence for tax purposes. Thus, for the purpose of satisfying the objectives of CPLR 308(2), Murphy’s “last known residence” was not the Noyack property (see Feinstein v Bergner, 48 NY2d at 241; Mangold v Neuman, 87 AD2d 780, affd 57 NY2d 627; cf. Bank of N.Y. v Espejo, 92 AD3d at 708; Melton v Brotman Foot Care Group, 198 AD2d 481, 481;Townsend v Hanks, 140 AD2d 162, 163).
The world of service. They served his vacation home and mailed to the vacation home. Part one was correct. For part two, they should have mailed where he lived. The best part is that since the SOL ran, the dismissal was with prejudice.
