A06640 Summary:

BILL NO    A06640 

SAME AS    Same as S 6649

SPONSOR    Brennan (MS)

COSPNSR    Powell, Espaillat

MLTSPNSR   

Amd S308, CPLR

Provides that when two certain acts of service have been attempted and one of
the two acts has been validly effected, it shall be sufficient to sustain the
service if it is shown that the defendant actually has received process.

A06640 Actions:

BILL NO    A06640 

03/11/2009 referred to codes
04/06/2009 reported 
04/09/2009 advanced to third reading cal.340
04/20/2009 passed assembly
04/20/2009 delivered to senate
04/20/2009 REFERRED TO CODES
01/06/2010 DIED IN SENATE
01/06/2010 RETURNED TO ASSEMBLY
01/06/2010 ordered to third reading cal.445

A06640 Votes:

BILL: A06640  DATE: 04/20/2009  MOTION:                       YEA/NAY: 142/000

Abbate  Y  Cahill  Y  Englebr Y  Hooper  Y  Maisel  Y  Powell  ER Skartad Y
Alessi  Y  Calhoun ER Errigo  Y  Hoyt    Y  Markey  Y  Pretlow Y  Spano   Y
Alfano  Y  Camara  ER Espaill Y  Hyer-Sp Y  Mayerso Y  Quinn   Y  Stirpe  Y
Amedore Y  Canestr Y  Farrell Y  Jacobs  ER McDonou Y  Rabbitt Y  Sweeney Y
Arroyo  ER Carrozz Y  Fields  Y  Jaffee  Y  McEneny Y  Raia    Y  Tedisco Y
Aubry   Y  Castro  Y  Finch   Y  Jeffrie Y  McKevit Y  Ramos   Y  Thiele  Y
Bacalle Y  Christe Y  Fitzpat Y  John    Y  Meng    Y  Reilich Y  Titone  Y
Ball    Y  Clark   ER Gabrysz Y  Jordan  Y  Miller  Y  Reilly  Y  Titus   Y
Barclay Y  Colton  Y  Galef   Y  Kavanag Y  Millman Y  Rive J  Y  Tobacco Y
Barra   Y  Conte   Y  Gantt   Y  Kellner Y  Molinar Y  Rive N  ER Towns   Y
Barron  Y  Cook    Y  Gianari Y  Kolb    Y  Morelle Y  Rive PM Y  Townsen Y
Benedet Y  Corwin  Y  Giglio  Y  Koon    Y  Nolan   Y  Robinso Y  Walker  Y
Benjami Y  Crouch  Y  Glick   Y  Lancman Y  Oaks    Y  Rosenth Y  Weinste Y
Bing    Y  Cusick  Y  Gordon  Y  Latimer Y  O'Donne Y  Russell Y  Weisenb Y
Boyland Y  Cymbrow Y  Gottfri Y  Lavine  Y  O'Mara  Y  Saladin Y  Weprin  Y
Boyle   Y  DelMont Y  Greene  Y  Lentol  Y  Ortiz   Y  Sayward Y  Wright  Y
Bradley Y  DenDekk Y  Gunther Y  Lifton  Y  Parment Y  Scarbor Y  Zebrows Y
Brennan Y  Destito Y  Hawley  Y  Lope PD Y  Paulin  Y  Schimel Y  Mr Spkr Y
Brodsky Y  Diaz    ER Hayes   Y  Lope VJ Y  Peoples Y  Schimmi Y
Brook-K Y  Dinowit Y  Heastie Y  Lupardo Y  Peralta Y  Schroed Y
Burling Y  Duprey  Y  Hevesi  Y  Magee   Y  Perry   Y  Scozzaf Y
Butler  Y  Eddingt Y  Hikind  Y  Magnare Y  Pheffer Y  Seminer Y

A06640 Memo:

BILL NUMBER:A6640

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 Practice,
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 subdi-
vision 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.

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.  A.6093 of
2001-02; A.3650 of 2003-04; A6952 of 2005-06; A5993 of 2007-08 - passed
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.