On June 18, 2024, the First Department issued a decision in AMK Capital Corp. v. Plotch, 2024 NY Slip Op. 03324, holding that
CPLR 308(2)’s restrictions prohibiting the inclusion of information indicating that a communication is from an attorney or concerns an action against the person to be served on an envelope in which process is mailed to a place of business apply when the mailing address serves both as a defendant’s residence and place of business do not apply, explaining:
CPLR 308(2) provides, in relevant part:
“Personal service upon a natural person shall be made . . . by delivering the summons . . . to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served . . . .”
The law is well settled that personal jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been complied with. The mailing requirement of CPLR 308(2) is to be strictly construed. The failure to comply with CPLR 308(2)’s mailing requirement is a jurisdictional defect warranting a finding as a matter of law that service thereunder was invalid. Thus, if defendant’s argument were to prevail, the foreclosure judgment would be vacated and the complaint dismissed as a matter of law.
Here, there is no dispute that if defendant’s address were only a place of business the envelope’s litigation-related markings would violate CPLR 308(2). The question is whether the business purpose overrides the residential purpose of defendant’s address, rendering the mailing herein invalid as a matter of law. Reliance on Howard Johnson Intl., Inc. v Wang (7 F Supp 2d 336) to resolve this issue is misplaced because it is factually distinguishable from the case before us. In Wang, the defect in mailing was that the envelope did not bear the words “personal and confidential.” Here, however, the issue is the prohibited inclusion of litigation-related information on the envelope indicating that the communication concerns an action against the person to be served, which is arguably more significant than the absence of the personal and confidential marking. Additionally, Wang was commenced in federal court and turned on compliance with Federal Rules of Civil Procedure rule 4(e), which is markedly different from CPLR 308(2).
Defendant’s argument that where a dual purpose exists the business mailing restrictions prohibiting litigation-related markings on the envelope take precedence over the residential mailing conditions is untenable. This position would improperly render meaningless one provision in favor of the other for no apparent reason other than to benefit one side over the other. That said, a close reading of CPLR 308(2)’s mailing requirements reveals an alternative construction that would resolve this interesting dilemma. The placement of the phrase last known residence before the phrase actual place of business signals the Legislature’s clear intent to deem mailing to a defendant’s residence to be primary over a place of business. Indeed, the legislative history for the 1987 amendment to CPLR 308(2) strongly supports this reasoning. The amendment providing for mailing to a place of business was to ameliorate the inability to locate a defendant’s residence. Thus, mailing to a residential address is primary over a mailing to a place of business, an option that was intended to be secondary in effectuating service of process. Based on the foregoing, where a defendant’s address is both residential and a place of business, the address may be deemed as a residential one in the affidavit of service, permitting a mailing in accordance with CPLR 308(2)’s residential mailing requirements. Under these circumstances, the mailing at issue herein did not violate CPLR 308(2)’s mailing requirements.
(Internal quotations and citations omitted).