& VINAL, P.C., BUFFALO (JEANNE M. VINAL OF COUNSEL), FOR
CONNORS, P.C., BUFFALO (JAMES J. NASH OF COUNSEL), FOR
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND
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.
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.
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.
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.
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.
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 . 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."
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.
November 20, 2013, Junior's attorney e-filed an answer on
behalf of "Walter Witkowski, " no suffix
. 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
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."
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.
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, ...