On August 17, 2022, the Second Department issued a decision in Hudson Val. Bank, N.A. v. Eagle Trading, 2022 NY Slip Op. 04956, holding that a defendant who used an address on a guaranty was estopped from denying that he resided at that address in an action to enforce the guaranty, explaining:
The defendant argued that service was invalid because he never resided at the address set forth in the affidavit of service. In support of his motion, the defendant submitted his own affidavit and documentary evidence, including utility bills and his New York State driver license, to substantiate his assertion that he never resided at the service address.
In opposition to the defendant’s motion, the plaintiff relied upon the affidavit of service to establish that the defendant was served at his dwelling place pursuant to CPLR 308(4). The plaintiff argued, among other things, that the defendant should be estopped from challenging the propriety of the service address, as that address had been provided by the defendant and set forth in the personal guaranty, and the defendant had personally and affirmatively agreed to receive notice at that location and to notify the plaintiff if and when his address changed.
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Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308. The failure to comply with the specific mandates of CPLR 308(4) is a jurisdictional defect, and notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court. As relevant here, service is invalid if the service address is not, in fact, the defendant’s actual place of business, dwelling place, or usual place of abode.
Ordinarily, a process server’s affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service. Here, as the Supreme Court properly determined, the affidavit of service demonstrated, prima facie, that the defendant was served with the summons and complaint pursuant to CPLR 308(4) by affixing a copy of the summons and complaint to the door of his actual dwelling place, and by mailing a copy of the summons and complaint to his last known residence.
In support of his position that service was invalid, the defendant argued that he never resided at the address set forth in the affidavit of service. In response, however, the plaintiff contended, among other things, that the defendant should be estopped from challenging the propriety of that address.
Estoppel, in this context, may preclude a defendant from challenging the location and propriety of service of process if that defendant has engaged in affirmative conduct which misleads a party into serving process at an incorrect address. For example, where a defendant willfully misrepresented his address or violated a statutory notification requirement, or where he engaged in conduct calculated to prevent the plaintiff from learning his actual place of residence, he may be estopped from asserting the defense of defective service.
Here, the record established that the defendant engaged in affirmative conduct which misled a party into serving process at an incorrect address. Under the circumstances, the defendant should have been estopped from contending that the address set forth in the affidavit of service was not his dwelling place, and that branch of the defendant’s motion which was pursuant to CPLR 5015(a)(4) should have been denied on this ground.
(Internal quotations and citations omitted).