On August 23, 2023, the Second Department issued a decision in U.S. Bank N.A. v. Henry, 2023 NY Slip Op. 04391, holding that the adequacy of service turned on fact questions, including the defendant’s failure to file a change of address form with the U.S. Postal Service, explaining:
Where service is effected pursuant to CPLR 308(4), the affix and mail method, the plaintiff must demonstrate that the summons was affixed to the door of the dwelling place or usual place of abode of the person to be served and mailed to such person’s last known residence. The dwelling place is one at which the defendant is actually residing at the time of delivery. The usual place of abode is a place at which the defendant lives with a degree of permanence and stability and to which he or she intends to return.
Here, the process servers’ affidavits of service established, prima facie, that the defendant was served pursuant to CPLR 308(4) by affixing a copy of the summons and complaint to the door of the subject property on July 14, 2018, and by mailing a copy of the summons and complaint to the defendant at the subject property on July 16, 2018. However, the defendant successfully rebutted the process servers’ affidavits through his specific averments that, at the time of the purported service, the subject property was not his actual dwelling place or usual place of abode, since he had moved to California in the summer of 2015. The defendant’s sworn statements that he had relocated to California and was living there at the time of the purported service, coupled with a copy of the defendant’s executed residential lease agreement for an apartment in Los Angeles, were sufficient to warrant a hearing to determine whether service was properly effectuated. To the extent that the plaintiff’s evidence that the defendant failed to inform the plaintiff or the United States Postal Service of his change of address may cast doubt upon the defendant’s claim that the subject property was not his dwelling place or usual place of abode at the time that service was purportedly effectuated, such a credibility issue is not a proper ground for denying the defendant’s cross-motion without a hearing.
Moreover, there is insufficient evidence in the record to determine whether the defendant, by his conduct, should be estopped from raising a claim of defective service. A defendant may be estopped from contesting the propriety of an address where service was attempted when the defendant has engaged in affirmative conduct which misleads a party into serving process at an incorrect address. Contrary to the plaintiff’s contention, the plaintiff’s evidence demonstrating that the defendant failed to update his address with the plaintiff or with the United States Postal Service was insufficient to establish, without a hearing, that the defendant should be estopped from contesting service as a matter of law. The defendant’s statement on a 2015 mortgage assistance application that the subject property was his principal residence also does not establish, as a matter of law, that the defendant is estopped from contesting that the subject property was a valid address for service of process, as the defendant’s representation on the mortgage assistance application was made prior to the date when he claims to have relocated to California, and three years prior to the date of purported service at the subject property. Consequently, the Supreme Court should have conducted a hearing to resolve the defendant’s jurisdictional objection before determining the plaintiff’s motion and the defendant’s cross-motion.
(Internal quotations and citations omitted).
Justice Maltese added in a concurrence:
I concur with the majority’s determination to remit this matter for a hearing to determine whether the defendant Miguel J. Henry (hereinafter the defendant) was properly served with process. I write separately to express my opinions concerning the defendant’s assertion that service was not proper because he relocated to California and whether the defendant’s conduct warrants that he be estopped from challenging the propriety of service.
. . .
With respect to the Supreme Court’s determination that the defendant is estopped from challenging service of process, the defendant contends that he did not intentionally conceal his place of residence in order to evade service of process. Where a defendant willfully misrepresents his or her address or violates a statutory notification requirement, or where he or she engages in conduct calculated to prevent the plaintiff from learning his or her actual place of residence, he or she may be estopped from asserting the defense of defective service. Here, since the defendant completed a mortgage loan modification application and represented that the subject property was his principal residence, and since he had been a defendant in a prior action to foreclose this mortgage, during which he admitted to residing at the subject property, he should have been on notice of his obligation under the mortgage agreement to notify the plaintiff of any change of address. He also should have been aware of the likelihood that the plaintiff would attempt to contact him or serve process upon him at the subject property. The evidence suggests that, by failing to notify either the plaintiff or the United States Postal Service of his alleged change of address, the defendant may have engaged in conduct calculated to prevent the plaintiff from learning his actual place of residence, such that a finding of estoppel may be warranted. Under the circumstances, a hearing is necessary in order to determine whether the defendant deliberately attempted to avoid service.
(Internal quotations and citations omitted).