Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

06/23/97 GABRIELE ASTROLOGO RESPONDENT V JOSEPH

June 23, 1997

GABRIELE ASTROLOGO, RESPONDENT, V JOSEPH SERRA, ET AL., APPELLANTS.


Guy James Mangano, P.j., John Copertino, Anita R. Florio, Leo F. McGINITY, JJ.

DECISION & ORDER

CPLR 308(5) vests a court with the discretion to direct an alternative method for service of process when it has determined that the methods set forth in CPLR 308(1), (2), and (4) are "impracticable" (see, Kelly v Lewis, 220 A.D.2d 485, 632 N.Y.S.2d 186; Tremont Fed. Sav. & Loan Assn. v Ndanusa, 144 A.D.2d 660, 661, 535 N.Y.S.2d 8). Although the impractability standard "is not capable of easy definition" ( Markoff v South Nassau Community Hosp., 91 A.D.2d 1064, 1065, 458 N.Y.S.2d 672, affd 61 N.Y.2d 283, 473 N.Y.S.2d 766, 461 N.E.2d 1253), it does not require the applicant to satisfy the more stringent standard of "due diligence" under CPLR 308(4), or to make a showing that "actual prior attempts to serve a party under each and every method provided in the statute have been undertaken" ( Kelly v Lewis, supra, at 485; see also, Dobkin v Chapman, 21 N.Y.2d 490, 289 N.Y.S.2d 161, 236 N.E.2d 451; Tremont Fed. Sav. & Loan Assn. v Ndanusa, supra).

Contrary to the defendants' contention, the Supreme Court did not improvidently exercise its discretion in directing an alternative method for service of process on the individual defendant Joseph Serra. Here, the plaintiff submitted evidence indicating that Joseph Serra had sold his New York and Connecticut residences had recently closed his automobile service center, and had entered into a contract to sell his commercial property in Valhalla, New York. Moreover, both the plaintiff's attorney and an investigator averred that they had received information that Joseph Serra had left New York and was residing at an unspecified location in Italy. Under these circumstances, the court could have reasonably concluded that service on Joseph Serra was impracticable under the other relevant sections of CPLR 308 (see, Franklin v Winard, 189 A.D.2d 717, 592 N.Y.S.2d 726; Saulo v Noumi, 119 A.D.2d 657, 501 N.Y.S.2d 95). However, the court erred in authorizing alternative service upon the individual defendant Anthony Serra, since the plaintiff made no showing of impracticability with respect to him.

Furthermore, the court was without authority to direct service upon the corporate defendants pursuant to CPLR 308(5), since that provision governs service of process upon natural persons, and is inapplicable to corporations, which must be served in accordance with CPLR 311 (see, Axxon Corp. v Xaba USA, 215 A.D.2d 517, 626 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.