Opinion
July 5, 1988
Appeal from the Supreme Court, Kings County (Williams, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted and the complaint is dismissed.
In the Supreme Court, the plaintiffs did not contradict the assertions in the defendants' affidavits in support of their motion to dismiss, that the only service of a summons and complaint in this case was done by mailing those documents to the defendants' post-office box by ordinary mail. No justification was offered for the lack of personal service (CPLR 308, [2]), no affidavit of personal service of the summons and complaint is contained in the record on appeal, and no explanation was suggested as to why the process was not affixed to the door of the defendants' residence (CPLR 308). Thus, the service was defective and the motion to dismiss should have been granted (see, Martini v. Powers, 105 A.D.2d 731; De Zego v. Donald F. Bruhn, P.C., 99 A.D.2d 823).
Further, the defendants' appearance in this action cannot act as a substitute for personal service because their answer contained an affirmative defense alleging lack of personal jurisdiction (CPLR 320 [b]; Matter of Katz, 81 A.D.2d 145, 148-149, affd 55 N.Y.2d 904 on opn at App. Div.; Colbert v International Sec. Bur., 79 A.D.2d 448, lv denied 53 N.Y.2d 608). Similarly, the defendants' actual notice of the action did not cure the defective service "since notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court" (Feinstein v Bergner, 48 N.Y.2d 234, 241). Thompson, J.P., Spatt, Sullivan and Harwood, JJ., concur.