Opinion
2020–03344 Index No. 707139/19
09-13-2023
Carlos CASTILLO–FLOREZ, respondent, v. Marceau CHARLECIUS, defendant, Metropolitan Transportation Authority, et al., appellants.
Armienti, DeBellis & Rhoden, LLP, New York, NY (Vanessa M. Corchia and Christopher M. Grimaldi of counsel), for appellants. Goidel & Siegel, LLP, New York, NY (Stacy R. Klozow of counsel), for respondent.
Armienti, DeBellis & Rhoden, LLP, New York, NY (Vanessa M. Corchia and Christopher M. Grimaldi of counsel), for appellants.
Goidel & Siegel, LLP, New York, NY (Stacy R. Klozow of counsel), for respondent.
COLLEEN D. DUFFY, J.P., LINDA CHRISTOPHER, DEBORAH A. DOWLING, BARRY E. WARHIT, JJ.
OPINION & ORDER
WARHIT, J. The principal question presented on this appeal is whether an individual defendant's failure to fulfill the statutory obligation to timely notify the New York State Department of Motor Vehicles (hereinafter DMV) of a change of address, standing alone, estops that defendant from contesting service of the summons and complaint made at his or her former address. We answer that question in the negative. For the reasons that follow, we hold that, while there are circumstances where a defendant may be estopped from contesting service of process based in part on the failure to update his or her address with the DMV, such as where the defendant engages in a deliberate attempt to avoid service, the mere failure to update one's address with the DMV, standing alone, does not automatically warrant application of the estoppel doctrine. I. Relevant Facts
In April 2019, the plaintiff commenced this action to recover damages for personal injuries he allegedly sustained in May 2018, when a bus operated by the defendant Marceau Charlecius struck him while he was crossing 102nd Street in Queens. The plaintiff alleged that the bus was owned by the defendants Metropolitan Transportation Authority, New York City Transit Authority, and Metropolitan Transportation Authority Bus Company, and that Charlecius was operating the bus within the scope of his employment with those defendants.
Charlecius allegedly was served with the summons and complaint on June 8, 2019, upon a person of suitable age and discretion pursuant to CPLR 308(2), but failed to answer the complaint or otherwise appear in the action. According to an affidavit of service, the plaintiff's process server effectuated service of the summons and complaint at an address in Farmingdale (hereinafter the Farmingdale address).
In December 2019, the plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment against Charlecius upon his failure to appear or answer the complaint. The plaintiff asserted that Charlecius was served with the summons and complaint at the address maintained on file with the DMV. In support of his motion, the plaintiff submitted, among other things, the process server's affidavit and a "record expansion" from the DMV dated April 22, 2019, which indicated that Charlecius resided at the Farmingdale address.
In opposition to the motion, it was contended that Charlecius did not default in this action because he was never properly served with the summons and complaint. Although it was conceded that the plaintiff had satisfied his prima facie burden of demonstrating proper service through the submission of the process server's affidavit, it was argued that the presumption of proper service was rebutted through the submission of Charlecius's affidavit, in which he denied receipt of service and denied residing at the Farmingdale address at the time service allegedly was made.
In reply, the plaintiff argued that, even assuming Charlecius did not reside at the Farmingdale address at the time of service, estoppel precluded a challenge to service upon him, based upon Charlecius's failure to update his address with the DMV, as required by Vehicle and Traffic Law § 505(5).
In the order appealed from, the Supreme Court granted the plaintiff's motion for leave to enter a default judgment against Charlecius. The court determined that the plaintiff had submitted proof Charlecius was served with the summons and complaint pursuant to CPLR 308(2) at the Farmingdale address. The court held that, while Charlecius may not have resided at the Farmingdale address as of June 2019, service upon him at that address was nevertheless permissible because Charlecius had failed to update his mailing address with the DMV as required by Vehicle and Traffic Law § 505(5). Additionally, the court determined that Charlecius's failure to update his address with the DMV precluded a challenge to the diligence of the process server in ascertaining Charlecius's correct address.
II. Discussion
A. Background
To successfully oppose a facially adequate motion for leave to enter a default judgment, a defendant must show either that there was no default, or that there was a reasonable excuse for the delay and a potentially meritorious defense to the action (see Liberty County Mut. v. Avenue I Med., P.C., 129 A.D.3d 783, 785, 11 N.Y.S.3d 623 ; Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 60, 970 N.Y.S.2d 260 ). Here, the opposition to the plaintiff's motion for leave to enter a default judgment asserted solely that there was no default by Charlecius as he was never served with the summons and complaint.
It is axiomatic that a court lacks personal jurisdiction over a defendant when a plaintiff fails to properly effectuate service of process (see Nationstar Mtge., LLC v. Esdelle, 186 A.D.3d 1384, 1386, 130 N.Y.S.3d 80 ; Krisilas v. Mount Sinai Hosp., 63 A.D.3d 887, 889, 882 N.Y.S.2d 186 ). "[S]ervice of process ... implicates due process requirements of notice and opportunity to be heard" ( Keane v. Kamin, 94 N.Y.2d 263, 265, 701 N.Y.S.2d 698, 723 N.E.2d 553 ). Service upon a natural person must be made in strict compliance with the methods of service set forth in CPLR 308 (see Everbank v. Kelly, 203 A.D.3d 138, 143, 163 N.Y.S.3d 88 ; Emigrant Mtge. Co., Inc. v. Westervelt, 105 A.D.3d 896, 964 N.Y.S.2d 543 ). While there are few recognized exceptions to following the precise language of CPLR 308, there are circumstances in which a defendant may be estopped from challenging the location or propriety of service (see Everbank v. Kelly, 203 A.D.3d at 145, 163 N.Y.S.3d 88 ).
As this Court recently reiterated, "[e]stoppel, in this context, may preclude a defendant ‘from challenging the location and propriety of service of process if that defendant has engaged in affirmative conduct which misleads a party into serving process at an incorrect address’ " ( Hudson Val. Bank, N.A. v. Eagle Trading, 208 A.D.3d 648, 650, 173 N.Y.S.3d 613, quoting Everbank v. Kelly, 203 A.D.3d at 145, 163 N.Y.S.3d 88 ). This includes situations, for example, where a defendant willfully misrepresents his or her address, or engages in conduct calculated to prevent the plaintiff from learning his or her actual place of residence (see Feinstein v. Bergner, 48 N.Y.2d 234, 241, 422 N.Y.S.2d 356, 397 N.E.2d 1161 ; Hudson Val. Bank, N.A. v. Eagle Trading, 208 A.D.3d at 650, 173 N.Y.S.3d 613 ; Everbank v. Kelly, 203 A.D.3d at 145, 163 N.Y.S.3d 88 ; Bank of N.Y. v. MacPherson, 301 A.D.2d 485, 486, 752 N.Y.S.2d 720 ).
This Court has also applied estoppel in certain cases, often arising from motor vehicle accidents, precluding a defendant from contesting service at a former address where the defendant failed to fulfill the statutory obligation of timely notifying the DMV of an address change (see e.g. Everbank v. Kelly, 203 A.D.3d at 146, 163 N.Y.S.3d 88, citing, inter alia, Mighty v. Deshommes, 178 A.D.3d 912, 915, 115 N.Y.S.3d 454 ; Canelas v. Flores, 112 A.D.3d 871, 872, 977 N.Y.S.2d 362 ). That statutory obligation is set forth in the Vehicle and Traffic Law, including section 505(5), which provides that "[i]t shall be the duty of every licensee to notify the commissioner in writing of any change of residence of such licensee within ten days after such change occurs." Vehicle and Traffic Law § 401(3) similarly provides, in pertinent part, that "[i]t shall be the duty of every owner holding a certificate of registration to notify the commissioner in writing of any change of residence of such person within ten days after such change occurs." As noted above, the Supreme Court determined that estoppel precluded a challenge to service upon Charlecius at his former address based on his failure to comply with Vehicle and Traffic Law § 505(5).
On appeal, it is contended that an individual's failure to update his or her address with the DMV, by itself, is insufficient to warrant application of the estoppel doctrine, and this Court's precedent to the contrary is not consistent with that of the Court of Appeals. To address this contention, it is necessary to review the development of the case law in this area.
B. Feinstein & Cohen
The issue of whether a defendant may be prevented from contesting service of a summons and complaint at a former address based, in part, on the failure to update his or her address with the DMV was directly addressed in ( Cohen v. Arista Truck Renting Corp., 70 Misc.2d 729, 335 N.Y.S.2d 30 [Sup. Ct., Nassau County] ), which was decided in 1972. Cohen involved a personal injury action arising from an automobile accident. The Supreme Court determined that the defendant driver was estopped from challenging the propriety of service at his former address because he had given an incorrect address to the plaintiffs at the time of the accident, failed to file a motor vehicle accident report as required by the Vehicle and Traffic Law, and failed to notify the DMV of his change of address (see id. at 731, 335 N.Y.S.2d 30 ). Under those circumstances, the court reasoned that the defendant should "not benefit from his own misrepresentation and fraud" ( id. ). The court, "in the interest of justice," nevertheless afforded the defendant an opportunity to vacate his default and answer the complaint, provided he moved for such relief within a specified period of time ( id. ).
In 1979, the Court of Appeals, in ( Feinstein v. Bergner, 48 N.Y.2d at 234, 422 N.Y.S.2d 356, 397 N.E.2d 1161 ), cited Cohen in support of its determination declining to estop a defendant from challenging service. At the time of the motor vehicle accident at issue in Feinstein , the defendant driver was residing with his parents, which was the address he gave at the accident scene (see id. at 237, 422 N.Y.S.2d 356, 397 N.E.2d 1161 ). Approximately 30 months after the accident, the plaintiffs attempted to commence an action against the defendant, with service being effectuated pursuant to CPLR 308(4) at the defendant's parents’ address (see Feinstein v. Bergner, 48 N.Y.2d at 237–238, 422 N.Y.S.2d 356, 397 N.E.2d 1161 ). The defendant, however, had moved from that address approximately 10 months after the accident (see id. at 238, 422 N.Y.S.2d 356, 397 N.E.2d 1161 ). The Court of Appeals found that the purported service was ineffective (see id. at 241, 422 N.Y.S.2d 356, 397 N.E.2d 1161 ). With respect to estoppel, the Court of Appeals, citing Cohen , held that the defendant could not be estopped from contesting service since the plaintiffs had "failed to demonstrate that [the defendant] engaged in conduct which was calculated to prevent them from learning of his new address" ( id. ). The Court of Appeals stated that it could "find no basis for invoking the estoppel doctrine," noting that "potential defendants ordinarily have no affirmative duty to keep those who might sue them abreast of their whereabouts" ( id. at 241–242, 422 N.Y.S.2d 356, 397 N.E.2d 1161, citing as a "cf. " Dobkin v. Chapman, 21 N.Y.2d 490, 504, 289 N.Y.S.2d 161, 236 N.E.2d 451 ).
C. Subsequent Case Law from this Court
This Court cited both Feinstein and Cohen in its 1981 decision in ( McNeil v. Tomlin, 82 A.D.2d 825, 439 N.Y.S.2d 430 ), which considered the doctrine of estoppel in connection with Vehicle and Traffic Law § 505(5). In McNeil , the defendant-appellant provided an address to the police at the scene of the subject motor vehicle accident that differed from the address listed on her driver license, and she also renewed the license with the same address listed on her license after the accident (see McNeil v. Tomlin, 82 A.D.2d at 825, 439 N.Y.S.2d 430 ). This Court upheld the Supreme Court's determination estopping the defendant from contesting service at the address listed on her license, explaining that not only did the defendant fail to inform the DMV of any change of address when she moved, as required by Vehicle and Traffic Law § 505(5), but upon renewal of her license, she affirmatively represented her address to be the address where service was effectuated (see McNeil v. Tomlin, 82 A.D.2d at 825–826, 439 N.Y.S.2d 430, citing as a "cf. " Feinstein v. Bergner, 48 N.Y.2d 234, 422 N.Y.S.2d 356, 397 N.E.2d 1161, and Cohen v. Arista Truck Renting Corp., 70 Misc.2d 729, 335 N.Y.S.2d 30 ).
Approximately four years later, this Court, in ( Kramer v. Ryder Truck Rental, Inc., 112 A.D.2d 194, 490 N.Y.S.2d 863 ), relied upon McNeil in upholding the Supreme Court's determination estopping a defendant from contesting service at his former address where there was evidence the defendant had violated Vehicle and Traffic Law § 505(5) and engaged in conduct this Court effectively deemed an attempt to avoid service. The defendant in Kramer proffered a driver license containing an incorrect address and failed to advise the State Trooper and the operators of the other vehicles involved in the subject accident that his driver license did not show his true address, which this Court held "constituted an affirmative misrepresentation thereof" ( Kramer v. Ryder Truck Rental, 112 A.D.2d at 196, 490 N.Y.S.2d 863 ).
Shortly after Kramer , this Court decided ( Hill v. Jones, 113 A.D.2d 874, 493 N.Y.S.2d 603 ), in which it held that the defendant was precluded from contesting the validity of service upon him at the subject address based on his conduct "in providing everyone concerned [in the accident] with a false address" ( id. at 875, 493 N.Y.S.2d 603 ). This Court went on to suggest, however, that the defendant's violation of Vehicle and Traffic Law § 505(5), by itself, would be a sufficient basis to preclude the defendant from contesting service, stating that
"even if we were to give defendant the benefit of assuming that the [subject] address was not fraudulent but was his proper address at one time, the fact remains that defendant was in violation of Vehicle and Traffic Law § 505(5) when he failed to timely notify the proper authorities of his change of address and plaintiff had the right to rely upon the address given by defendant" ( Hill v. Jones, 113 A.D.2d at 875, 493 N.Y.S.2d 603, citing Kramer v. Ryder Truck Rental, Inc., 112 A.D.2d 194, 490 N.Y.S.2d 863 ).
Several years after Hill and Kramer , in 1989, this Court decided ( Anello v. Barry, 149 A.D.2d 640, 540 N.Y.S.2d 460 ). The defendant in Anello moved to vacate a default judgment entered against her based on lack of service, which the plaintiff opposed on the ground that service was properly made pursuant to CPLR 308(2) at the defendant's residence as reflected in a DMV record (see Anello v. Barry, 149 A.D.2d at 640, 540 N.Y.S.2d 460 ). This Court, while directing a hearing to determine if service was properly effectuated, stated that "[a] party who fails to comply with [ Vehicle and Traffic Law § 505(5) ] will be estopped from challenging the propriety of service which is made to the former address" ( id. at 641, 540 N.Y.S.2d 460 [emphasis added], citing, among other cases, Hill v. Jones, 113 A.D.2d 874, 493 N.Y.S.2d 603, and Kramer v. Ryder Truck Rental, Inc., 112 A.D.2d 194, 490 N.Y.S.2d 863 ).
Subsequent to Anello , decisions from this Court continued to use similar language indicating that estoppel was mandatory in all circumstances where a defendant failed to comply with the Vehicle and Traffic Law address notification provisions (see e.g. Sherrill v. Pettiford, 172 A.D.2d 512, 513, 567 N.Y.S.2d 859 ["A party who fails to comply with [ Vehicle and Traffic Law § 505(5) ] will be estopped from challenging the propriety of service which is made to the former address"], citing Anello v. Barry, 149 A.D.2d 640, 540 N.Y.S.2d 460 ). Certain cases with this language involved situations where the defendant had also engaged in affirmative conduct that this Court viewed as a deliberate attempt to avoid notice of the action, making estoppel appropriate (see Mighty v. Deshommes, 178 A.D.3d at 912–915, 115 N.Y.S.3d 454 ; Wauchope v. Williams, 71 A.D.3d 876, 877, 895 N.Y.S.2d 858 ; Sherrill v. Pettiford, 172 A.D.2d at 512–513, 567 N.Y.S.2d 859 ; see also Velasquez v. Gallelli, 44 A.D.3d 934, 935, 844 N.Y.S.2d 361 ). Other cases, however, held that the defendant was estopped from contesting service based solely upon the lack of compliance with Vehicle and Traffic Law § 401(3) or § 505(5), without indicating that the defendant had engaged in any other conduct designed to avoid service (see e.g. Campoverde v. Parejas, 95 A.D.3d 1251, 944 N.Y.S.2d 895 ; Walker v. Reyes, 59 A.D.3d 436, 437, 872 N.Y.S.2d 205 ; Candela v. Johnson, 48 A.D.3d 502, 503, 852 N.Y.S.2d 277 ; Kandov v. Gondal, 11 A.D.3d 516, 783 N.Y.S.2d 57 ; Choudhry v. Edward, 300 A.D.2d 529, 530, 752 N.Y.S.2d 384 ; McCleaver v. VanFossen, 276 A.D.2d 603, 604, 714 N.Y.S.2d 138 ; Billis v. Martz, 259 A.D.2d 458, 458, 684 N.Y.S.2d 883 ; Pumarejo–Garcia v. McDonough, 242 A.D.2d 374, 375, 662 N.Y.S.2d 66 ; Burke v. Zorba Diner, Inc., 213 A.D.2d 577, 579, 623 N.Y.S.2d 932 ). In Burke , this Court deemed the defendant's failure to properly update his address to be the equivalent of an affirmative misrepresentation of his address (see Burke v. Zorba Diner, 213 A.D.2d at 579, 623 N.Y.S.2d 932 ). Otherwise, none of these latter-cited cases set forth an explanation for employing this more exacting standard, which apparently originated in Anello .
Relatedly, this Court has also applied this standard to effectively estop defendants from seeking relief from a default judgment under CPLR 317, which permits a defendant who has been served with a summons other than by personal delivery to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense (see Citimortgage v. Stuckova, 199 A.D.3d 984, 154 N.Y.S.3d 792 ). Applying a rationale similar to Burke , this Court has generally viewed a defendant's direct involvement in a motor vehicle accident, coupled with the failure to advise the DMV of a change of address, as a deliberate attempt to avoid service, or at least sufficient to raise an inference of same, thereby precluding relief under CPLR 317 (see Canelas v. Flores, 112 A.D.3d at 872, 977 N.Y.S.2d 362 ; Hidalgo v. Cruiser Taxi Corp., 101 A.D.3d 950, 951, 957 N.Y.S.2d 222 ; Cruz v. Narisi, 32 A.D.3d 981, 821 N.Y.S.2d 643 ; see also O'Garro v. Brown, 288 A.D.2d 279, 280, 732 N.Y.S.2d 873 ; cf. Kalamadeen v. Singh, 63 A.D.3d 1007, 1009, 882 N.Y.S.2d 437 ).
Despite the above-referenced decisions, however, this Court has at times, consistent with Feinstein , declined to apply estoppel where there was no evidence that the defendants had engaged in any conduct which could be viewed as a deliberate attempt to avoid service. For example, in ( Rios v. Zorrilla, 8 A.D.3d 463, 463, 778 N.Y.S.2d 694 ), a personal injury action, this Court, citing Feinstein , declined to estop the defendants from challenging the propriety of service "since they did not engage in conduct which was designed to conceal their actual addresses." More recently, in ( Nationstar Mtge., LLC v. Esdelle, 186 A.D.3d 1384, 130 N.Y.S.3d 80 ), a mortgage foreclosure action, this Court similarly held that the Supreme Court erred in estopping the defendant from challenging service based on her failure to update her new address with the DMV as required by Vehicle and Traffic Law § 505(5). This Court explained that there was "no evidence that the defendant affirmatively misrepresented her address so that the plaintiff would rely upon the misrepresentation to effectuate service, nor ... any evidence that the plaintiff served the defendant at the [subject] address in reliance upon the defendant's address as reported to the [DMV]" ( Nationstar Mtge., LLC v. Esdelle, 186 A.D.3d at 1388, 130 N.Y.S.3d 80 [citations omitted]; see Itshaik v. Singh, 165 A.D.3d 902, 904, 86 N.Y.S.3d 572 ).
D. Case Law Outside the Appellate Division, Second Department
In ( Marsh v. Phillips, 167 A.D.2d 905, 562 N.Y.S.2d 273 ), decided in 1990, the Appellate Division, Fourth Department, declined to estop a defendant from challenging service based on his failure to update his address with the DMV. The Fourth Department explained that the defendant at issue "did not engage in conduct calculated to prevent plaintiff from learning his new address; he merely neglected to contact authorities to inform them of his change of address" ( id. at 906, 562 N.Y.S.2d 273 ). The Fourth Department, quoting Feinstein , concluded that " ‘[s]ince potential defendants ordinarily have no affirmative duty to keep those who might sue them abreast of their whereabouts,’ there is no basis upon which to invoke an estoppel against [the defendant]" ( id. , quoting Feinstein v. Bergner, 48 N.Y.2d at 241–242, 422 N.Y.S.2d 356, 397 N.E.2d 1161 [citation omitted]). Subsequently, in ( Seiler v. Ricci's Towing Servs., Inc., 227 A.D.2d 920, 643 N.Y.S.2d 789 ), the Fourth Department, in pertinent part, reiterated its holding in Marsh that "a defendant is not estopped from raising defective service as a defense where he did not engage in conduct calculated to prevent plaintiff from learning his new address, even where he ‘neglected to contact authorities to inform them of his change of address’ " ( id. at 921, 643 N.Y.S.2d 789, quoting Marsh v. Phillips, 167 A.D.2d at 906, 562 N.Y.S.2d 273 ), and expressly declined to follow this Court's decisions in Anello and Hill , among others (see Seiler v. Ricci's Towing Servs., 227 A.D.2d at 921, 643 N.Y.S.2d 789 ; see also Olscamp v. Fasciano, 118 A.D.3d 1472, 1473, 988 N.Y.S.2d 805 ). More recent precedent from the Fourth Department, however (see Pecoraro v. Miller, 140 A.D.3d 1788, 1789, 32 N.Y.S.3d 415 ), as well as decisions from the Appellate Division, First and Third Departments, often citing precedent from this Court, such as Kandov and Pumarejo–Garcia , have used language indicating that estoppel is mandatory with respect to a challenge to service at a former address where a defendant fails to update a change of address with the DMV (see e.g. Perlbinder Holdings LLC v. Patel, 202 A.D.3d 578, 159 N.Y.S.3d 675 ; Stillman v. City of New York, 39 A.D.3d 301, 303, 834 N.Y.S.2d 115 ; New York State Elec. & Gas Corp. v. Allen, 246 A.D.2d 855, 856, 668 N.Y.S.2d 275 ; cf. LCS Capital, LLC v. Hatlestad, 77 Misc.3d 402, 410, 176 N.Y.S.3d 442 [Sup. Ct., Monroe County 2022] [examining the development of the case law involving the estoppel exception and declining to apply estoppel, despite the defendant's failure to comply with Vehicle and Traffic Law § 505(5), where the plaintiff failed to establish that the defendant engaged in conduct designed to avoid service]). E. Analysis of the Case Law
A review of the relevant case law leads us to the conclusion that certain of this Court's jurisprudence in this area drifted from the original intent of Feinstein . Although Feinstein did not focus on Vehicle and Traffic Law § 505(5), nothing in that decision suggests that an individual defendant's failure to timely update his or her address with the DMV, standing alone, mandates precluding a defendant from challenging service made at a former address. Rather, as discussed, the Court of Appeals declined to apply estoppel because the plaintiffs had failed to demonstrate that the defendant engaged in conduct calculated to prevent them from learning of his new address (see Feinstein v. Bergner, 48 N.Y.2d at 241, 422 N.Y.S.2d 356, 397 N.E.2d 1161 ). We find that the failure to update one's address, by itself, should not equate with affirmative or deliberate conduct designed to avoid service, even when coupled with a defendant's direct involvement in an accident. Indeed, as aptly recognized by the dissent in ( Cruz v. Narisi, 32 A.D.3d at 981, 821 N.Y.S.2d 643 ),
"there seems no compelling reason to hold that an individual defendant's failure to update her residential address with the DMV should, without more, be deemed a deliberate attempt to avoid service when a corporate defendant's failure to update its address on file with the Secretary of State, standing alone, is not" ( id. at 986, 821 N.Y.S.2d 643 [Fisher, J. dissenting],
citing, among other cases, Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 143, 501 N.Y.S.2d 8, 492 N.E.2d 116 ; Hon–Kuen Lo v. Gong Park Realty Corp., 16 A.D.3d 553, 792 N.Y.S.2d 145 ; Grosso v. MTO Assoc. Ltd. Partnership, 12 A.D.3d 402, 403, 784 N.Y.S.2d 576 ).
Whether application of estoppel is appropriate in this context necessarily depends on the facts and circumstances of the particular case, and certain cases may require a hearing to determine whether estoppel is warranted (see U.S. Bank, N.A. v. Tauber, 186 A.D.3d 1451, 1452–1453, 130 N.Y.S.3d 534 ). A defendant's failure to update his or her address with the DMV, in the appropriate case, may be a relevant factor to consider in determining whether a defendant has engaged in a deliberate attempt to avoid service. For example, in ( Wauchope v. Williams, 71 A.D.3d at 876, 895 N.Y.S.2d 858 ), this Court appropriately applied estoppel to preclude the defendant from contesting service at his former address where the defendant failed to notify the DMV of his change in address, which allegedly occurred three years prior to the subject accident, and affirmatively misrepresented to the police and the plaintiff that the address on his driver license was correct (see id. at 877, 895 N.Y.S.2d 858 ). Likewise, in ( Velasquez v. Gallelli, 44 A.D.3d at 935, 844 N.Y.S.2d 361 ), estoppel was appropriate given the defendant's knowledge, before her change of address, of the plaintiffs’ intent to pursue a claim, and thus, her failure to notify the DMV of the change of address could be viewed as a deliberate attempt to avoid notice of the action.
However, for the reasons discussed, we hold that the mere failure to update one's address with the DMV, standing alone, does not automatically equate with a deliberate attempt to avoid service and warrant estopping a defendant from challenging the propriety of service at a former address. To the extent our prior decisions, including those previously cited herein, conflict with this principle, they should no longer be followed for that proposition.
F. Application of the Law in this Case
Applying these principles to the facts of this case, we find that the Supreme Court erred in applying estoppel with respect to the issue of service of the summons and complaint upon Charlecius. The plaintiff failed to present any evidence that Charlecius engaged in conduct calculated to prevent the plaintiff from learning of his new address. There is no evidence Charlecius affirmatively misrepresented his address to the plaintiff or the police so that the plaintiff would rely upon the misrepresentation to effectuate service. Under the circumstances, the record provides no basis for concluding that Charlecius neglected to update his address with the DMV as part of a deliberate attempt to avoid service.
Turning to the merits of the challenge to the propriety of service, CPLR 308(2) provides, in pertinent part, that personal service upon a natural person may 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 mailing the summons to the person to be served at his or her last known residence (see Wells Fargo Bank, N.A. v. Singh, 204 A.D.3d 732, 733, 163 N.Y.S.3d 864 ). Ordinarily, a process server's affidavit of service constitutes prima facie evidence of proper service (see FV–1, Inc. v. Reid, 138 A.D.3d 922, 923, 31 N.Y.S.3d 119 ; Scarano v. Scarano, 63 A.D.3d 716, 880 N.Y.S.2d 682 ). "While bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing" ( Wachovia Bank, N.A. v. Greenberg, 138 A.D.3d 984, 985, 31 N.Y.S.3d 110 [citations omitted]; see Bank of Am., N.A. v. Tobing, 145 A.D.3d 941, 942, 45 N.Y.S.3d 133 ).
Here, the affidavit of the plaintiff's process server constituted prima facie evidence of proper service upon Charlecius pursuant to CPLR 308(2). The contention that the affidavit of service was insufficient to establish proof of proper service is not properly before this Court, as this contention was not raised before the Supreme Court (see Wilmington Trust, N.A. v. Pape, 169 A.D.3d 1100, 92 N.Y.S.3d 890 ). To the contrary, the opposition conceded that the "plaintiff has met his prima facie burden of demonstrating proper service through his submission of an affidavit of service."
However, the opposition sufficiently rebutted the presumption of proper service. In opposition to the plaintiff's motion, a detailed, sworn affidavit from Charlecius was submitted, in which he, inter alia, denied receipt of service, denied residing at the Farmingdale address at the time service allegedly was made, and set forth the location of his address at the time of service (see Kasowitz, Benson, Torres & Friedman, LLP v. Cao, 105 A.D.3d 521, 963 N.Y.S.2d 199 ; Sileo v. Victor, 104 A.D.3d 669, 670, 960 N.Y.S.2d 466 ; Goralski v. Nadzan, 89 A.D.3d 801, 932 N.Y.S.2d 376 ). Under these circumstances, a hearing to determine whether Charlecius was properly served pursuant to CPLR 308(2) was required (see Board of Mgrs. of Oceana Condominium No. Two v. Medianik, 170 A.D.3d 793, 794, 96 N.Y.S.3d 253 ; Sileo v. Victor, 104 A.D.3d at 670, 960 N.Y.S.2d 466 ; Goralski v. Nadzan, 89 A.D.3d at 801, 932 N.Y.S.2d 376 ).
G. Conclusion
The remaining contentions regarding the plaintiff's compliance with CPLR 3215, raised for the first time on appeal, are not properly before this Court (see Wilson v. Galicia Contr. & Restoration Corp., 10 N.Y.3d 827, 829, 860 N.Y.S.2d 417, 890 N.E.2d 179 ; Bank of N.Y. Mellon v. Daniels, 180 A.D.3d 738, 739, 115 N.Y.S.3d 904 ).
Accordingly, the order is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a hearing to determine whether Charlecius was properly served with process, and thereafter a new determination of the plaintiff's motion for leave to enter a default judgment against that defendant (see Nationstar Mtge., LLC v. Esdelle, 186 A.D.3d at 1388, 130 N.Y.S.3d 80 ).
DUFFY, J.P., CHRISTOPHER and DOWLING, JJ., concur.
ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Queens County, for a hearing to determine whether the defendant Marceau Charlecius was properly served with process, and thereafter a new determination of the plaintiff's motion for leave to enter a default judgment against that defendant.