        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

607
CA 15-01206
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


RUSSELL PECORARO, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MARY W. MILLER, DEFENDANT-RESPONDENT.


ROSCETTI & DECASTRO, P.C., NIAGARA FALLS (CAMILLE A. SARKEES OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

LAW OFFICES OF JOHN WALLACE, BUFFALO (NANCY A. LONG OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County (Frank
Caruso, J.), entered March 23, 2015. The order, inter alia, granted
the cross motion of defendant to dismiss the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Supreme Court properly granted defendant’s cross
motion to dismiss the complaint against her for lack of personal
jurisdiction. Defendant was the owner and operator of a vehicle
involved in an accident with a vehicle operated by plaintiff. After
plaintiff filed the summons and complaint, he attempted to serve
defendant where she resided on the day of the accident. Two months
after the accident, however, defendant moved to a different residence
in the same apartment complex. Two years later, defendant relocated
to Texas. After learning that defendant had relocated out of state
and had not left a forwarding address with the apartment complex
manager, plaintiff attempted service pursuant to Vehicle and Traffic
Law § 253, made applicable to defendant under section 254. Plaintiff
mailed the requisite documents via certified and registered mail,
return receipt requested, but mailed those documents to the residence
at which defendant resided on the day of the accident. The mailing
was returned, stamped “Return to Sender Attempted Not Known.”

     Defendant correctly contends that statutory conditions of Vehicle
and Traffic Law § 253 were not met inasmuch as that statute permits
service only where a mailing is returned as either “refused” or
“unclaimed” (see Ross v Hudson, 303 AD2d 393, 393-394; Nunez v Nunez,
145 AD2d 347, 348; Bingham v Ryder Truck Rental, 110 AD2d 867, 869;
Zimmerman v Elsner, 102 AD2d 707, 708). Thus, the court properly
determined that personal jurisdiction over defendant was never
obtained.
                                 -2-                           607
                                                         CA 15-01206

     Plaintiff, however, contends that, because defendant failed to
notify the Department of Motor Vehicles (DMV) of her change of
address, she is estopped from challenging the validity of service
pursuant to Vehicle and Traffic Law § 505 (5). Even assuming,
arguendo, that plaintiff properly raised the estoppel contention in a
sur-surreply (cf. Mikulski v Battaglia, 112 AD3d 1355, 1356; Seefeldt
v Johnson, 13 AD3d 1203, 1203-1204), we nevertheless conclude that
plaintiff’s contention lacks merit. Where a plaintiff attempts to
serve a defendant at the address on file with the DMV “at the time of
service” (Canelas v Flores, 112 AD3d 871, 872), but the defendant has
since relocated and failed to notify the DMV of the change of address
as required by section 505 (5), the defendant is estopped from
challenging the propriety of service made to that former address (see
id. at 871-872; Velasquez v Gallelli, 44 AD3d 934, 935).

     Here, the address on file with the DMV at the time of service was
the second address in the apartment complex, which suggests that
plaintiff did, in fact, notify the DMV of that address change.
Plaintiff, however, attempted to serve defendant at the first
residence in that apartment complex. Inasmuch as defendant apparently
filed a change of address with the DMV to serve as notification that
she had moved from the first apartment to the second apartment, she is
not estopped from challenging defendant’s attempted service made to
the first apartment (see Canelas, 112 AD3d at 872; see also Rodriguez
v Morales, 200 AD2d 406, 407).




Entered:   June 17, 2016                        Frances E. Cafarell
                                                Clerk of the Court
