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Martin v. Witkowski

Supreme Court of New York, Fourth Department

December 22, 2017

ANTOINE MARTIN, II, PLAINTIFF-APPELLANT,
v.
WALTER WITKOWSKI, DEFENDANT-RESPONDENT. (APPEAL NO. 1.)

          VINAL & VINAL, P.C., BUFFALO (JEANNE M. VINAL OF COUNSEL), FOR PLAINTIFF-APPELLANT.

          NASH CONNORS, P.C., BUFFALO (JAMES J. NASH OF COUNSEL), FOR DEFENDANT-RESPONDENT.

          PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.

          OPINION

          NeMoyer, J.

         Appeal from an order of the Supreme Court, Erie County (Thomas P. Franczyk, A.J.), entered January 17, 2014. The order granted the motion of defendant to dismiss the complaint.

         It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated.

         This appeal raises an age-old dilemma: how should the law distinguish between a father and son of the same name? Under the circumstances presented here, we hold that plaintiff properly commenced a single action against Walter Witkowski, Jr. notwithstanding plaintiff's initial and ineffective attempt to serve Witkowski, Jr. at the home of his father, Walter Witkowski, Sr.

         FACTS

         Plaintiff was injured in a two-car accident in the City of Buffalo on November 4, 2010. It is undisputed that the driver of the other car was one Walter Witkowski, Jr. (hereafter, Junior). Following the crash, Junior identified himself only as "Walter Witkowski, " and did not disclose that he shared his father's name.

         Plaintiff subsequently commenced this personal injury action by e-filing a summons and complaint on October 22, 2013. The caption on the summons and complaint named "Walter Witkowski" -no suffix-as the lone defendant. Within the caption of both documents, plaintiff wrote that the defendant Witkowski lived at "121 Pearl Street" in Buffalo.

         On October 30, 2013, a process server went to 121 Pearl Avenue in the Village of Blasdell, Erie County, and delivered a copy of the summons and complaint to one Matthew Putnam, who the process server would later identify in his affidavit of service as the "co-tenant" and "grandson" of the defendant Witkowski [1]. Two days later, on November 1, 2013, the process server mailed a copy of the commencement papers to the address in Blasdell. The affidavit of service was then e-filed on November 6, 2013. We will call this series of events the "October 2013 service."

         As it turns out, however, Junior did not reside at 121 Pearl Avenue in Blasdell. Instead, his father, Walter Witkowski, Sr. (hereafter, Senior) resided at that address. Matthew Putnam, who also resided at 121 Pearl Avenue in Blasdell at the time, is Senior's grandson and Junior's nephew.

         On November 20, 2013, Junior's attorney e-filed an answer on behalf of "Walter Witkowski, " no suffix [2]. In the answer, Junior interposed the following affirmative defense: "this answering defendant is not subject to the jurisdiction of this Court as he was never properly served." The answer did not, however, interpose any defense or affirmative defense based on improper joinder.

         Shortly thereafter, on November 23, 2013, a different process server went to Junior's actual residence in the Town of Aurora, Erie County, and delivered a copy of the summons and complaint to Junior's wife. On November 27, 2013, the process server mailed a packet to Junior's residence in Aurora; although not explicitly stated in the affidavit of service, it is uncontested that this packet contained a copy of the commencement papers. The affidavit of service was e-filed on December 3, 2013. We will call this series of events the "November 2013 service."

         Perhaps realizing that the November 2013 service was effectuated after the statute of limitations had run, Junior adopted a new legal strategy: he began to argue that the attempted service on Junior at Senior's home in October 2013 constituted proper service on Senior, and that plaintiff had actually been suing Senior the whole time. In furtherance of this strategy, Junior rejected numerous discovery demands on the ground that he was not a party to the lawsuit.

         Junior, purportedly as a nonparty, then moved to dismiss the complaint. Citing CPLR 1003 and CPLR 3211, Junior argued generally that Senior was the actual named defendant and that Supreme Court lacked personal jurisdiction over Junior due to improper service and improper joinder. Plaintiff opposed the motion, arguing that Junior was and always had been the lone defendant in this action, ...


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