On September 18, 2024, the Second Department issued a decision in Citimortgage, Inc. v. Goldstein, 2024 NY Slip Op. 04453, holding that to be estopped from challenging service, a defendant must actively avoid it, not just fail to facilitate it, explaining:
Here, a process server’s affidavit of service averred that the defendant was served pursuant to CPLR 308(4) by affixing a copy of the summons and complaint to the door of the property on March 31, 2021, and mailing a copy of the summons and complaint to that address on the same date, and by affixing the summons and complaint to the door of the defendant’s former business address on April 9, 2021, and mailing a copy of the summons and complaint to that address on the same date. However, the appellants’ submissions demonstrated their entitlement to a hearing to determine whether the defendant was properly served with process, as the appellants provided specific facts sufficient to rebut the presumption of proper service upon the defendant established by the process server’s affidavit, including that in October 2019, the defendant moved out of the property, which was thereafter occupied by tenants.
Contrary to the plaintiff’s contention, there is insufficient evidence in the record to determine that 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. However, as the Court of Appeals has recognized, potential defendants ordinarily have no affirmative duty to keep those who might sue them abreast of their whereabouts. Thus, a defendant’s mere inaction—such as failing to update his or her address with the plaintiff, the Department of Motor Vehicles (hereinafter DMV), or the United States Postal Service (hereinafter USPS)—without more, may not be equated with affirmative or deliberate conduct designed to avoid service. Here, the defendant’s failure to update his address with the plaintiff, DMV, or USPS, or to update his voting records with a new address, did not constitute affirmative conduct, and such failure was insufficient to establish, without a hearing, that the defendant should be estopped from contesting service as a matter of law.
Furthermore, the defendant’s decision to forward his mail from the property to a post office box and to a former business address after moving out of the property was consistent with the defendant no longer residing at the property. Indeed, had the defendant neglected to forward his mail after moving out of the property, such inaction would have been more consistent with the defendant continuing to reside at the property. Thus, the sole affirmative conduct by the defendant in this action—forwarding his mail from the property—cannot be deemed affirmative or deliberate conduct designed to avoid service by misleading the plaintiff into believing that the defendant still resided at the property. To the extent the plaintiff contends that the defendant had an affirmative obligation to provide the plaintiff with an updated address after moving out of the property, the plaintiff’s contention is without merit. Moreover, the plaintiff’s contention fails to account for the defendant’s transient living situation after moving out of the property. The defendant explained in his affidavit that after he moved out of the property in October 2019, he did not provide an updated address because he was not permanently settled anywhere, and that he stayed for periods of time at his mother’s home in Pennsylvania and with his son in Florida. Further, to the extent our dissenting colleague asserts that the defendant had any heightened obligation because he should have anticipated that service would be attempted in light of the prior foreclosure actions commenced against him or his failure to make mortgage payments, we respectfully disagree. There is no authority imposing any heightened obligation on an individual merely because he or she has reason to believe that he or she will be named as a defendant in a foreclosure action, and we decline to hold that a defendant may be estopped from contesting service absent a showing of affirmative or deliberate conduct designed to avoid service.
Consequently, the Supreme Court should have conducted a hearing before determining that branch of the appellants’ motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendant for lack of personal jurisdiction. Accordingly, we remit the matter to the Supreme Court, Suffolk County, for a hearing to determine whether the defendant was properly served with process pursuant to CPLR 308(4) and a new determination thereafter of that branch of the appellants’ motion.
(Internal quotations and citations omitted).