STATE OF NEW YORK
       ________________________________________________________________________
 
                                        6093--A
 
                              2001-2002 Regular Sessions
 
                   IN ASSEMBLY
 
                                     March 5, 2001
                                      ___________
 
       Introduced  by M. of A. BRENNAN -- read once and referred to the Commit-
         tee on Codes -- committee discharged, bill amended, ordered  reprinted
         as amended and recommitted to said committee
 
       AN  ACT  to  amend  the civil practice law and rules, in relation to the
         validity of service of process in certain circumstances
 
         The People of the State of New York, represented in Senate and  Assem-
       bly, do enact as follows:
 
    1    Section  1. Section 308 of the civil practice law and rules is amended
    2  by adding a new closing paragraph to read as follows:
    3    Where both acts of service pursuant to subdivision two or four of this
    4  section have been  attempted,  and  one  of  the  two  acts  of  service
    5  prescribed under either subdivision two or four of this section has been
    6  validly effected, it shall be sufficient to sustain the service if it is
    7  shown that the defendant actually has received process.
    8    §  2.  This  act  shall  take  effect on the first day of January next
    9  succeeding the date on which it shall have become a law, and shall  only
   10  apply to actions and proceedings commenced on or after such date.
 
 
 
 
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD08795-02-1

 
BILL NUMBER: A6093A
 
SPONSOR: Brennan

 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to the validity of service of process in certain circumstances
 
 
SUMMARY OF SPECIFIC PROVISIONS:  This measure, which was recommended
by the Chief Administrative Judge's Advisory Committee on Civil Prac-
tice, would amend CPLR 308 to add a new undesignated paragraph at the
end to provide that if both acts of service pursuant to subdivision 2,
or subdivision 4 when applicable, have been attempted and only one of
them is validly effected, a showing that the defendant actually received
process shall be sufficient to sustain service. Of course, completion of
service in such a case would include the filing of proof of service with
the clerk of the court.
 
Amended version of this bill just clarified this meaning.
 
 
JUSTIFICATION:  In the interest of basic fairness, this measure is
designed in a carefully limited manner to prevent recurrence of the
harsh outcome of Feinstein v.  Bergner, 48 N.Y.2d 234 (1978). That was a
wrongful death action in which the plaintiff-widow, despite diligent
efforts, was unable to effectuate both the required acts of service -
first under CPLR 308(2) (deliver and mail) and then under CPLR 308(4)
(affix and mail). The Court of Appeals, with a strong dissent, held
that, even though defendant had in fact received timely notice and the
limitations period had shortly thereafter elapsed, the service was
fatally defective. It reasoned that, while plaintiff had properly mailed
process to defendant's "last known residence," she had not satisfied the
additional requirement of affixing process to the door of defendant's
"dwelling place" or "usual place of abode," affixing it rather to the
door of his "last known residence," for she had no reason to believe it
was not his "dwelling place" or "usual place of abode."
 
The result in Feinstein makes it clear that the text of the cited subdi-
vision, even as amended by chapter 115 of the laws of 1987, is not flex-
ible enough to provide the full measure of justice desired in such trou-
blesome, even if infrequent, situations. The Advisory Committee also
considered the effect of chapter 216 of the laws of 1992 (commencement
of action by filing) upon the problem, and concluded that the new
provisions enacted by that statute do not render the proposed change
unnecessary.  While subdivisions 2 and 4 correctly will remain as the
appropriate general standard in most cases where utilized, the proposed
new paragraph would extend justifiable relief under exceptional circum-
stances such as those in the Feinstein case.
 
 
PRIOR LEGISLATIVE HISTORY:  Similar to bills beginning in 1989, the
most recent being 1999-2000 - A.3566a. In Codes in the Assembly.
 
 
FISCAL IMPLICATIONS TO STATE AND LOCAL GOVERNMENT:  None.
 
 
EFFECTIVE DATE:  January 1, following enactment and would apply only
to actions and proceedings commenced on or after that date.