Summary
In Saulo v Noumi (119 A.D.2d 657), a medical malpractice action, the defendant doctor departed to the Middle East without leaving a forwarding address.
Summary of this case from Weldon v. Long Is. Coll. HospOpinion
April 14, 1986
Appeal from the Supreme Court, Kings County (Morton, J.).
Order dated November 21, 1984 affirmed, insofar as reviewed.
The plaintiffs are awarded one bill of costs.
The record indicates that the plaintiffs unsuccessfully attempted to personally serve the individual defendant with a summons at his business address in New York on three separate occasions in order to timely commence this action to recover damages for medical malpractice. The plaintiffs were then informed that the individual defendant had left New York and gone to an unspecified location in the Middle East without leaving any forwarding address. Inquiries addressed by the plaintiffs to the individual defendant's former medical associate and to his former secretary yielded no information as to his whereabouts. Hence, the plaintiffs moved for an order authorizing expedient service pursuant to CPLR 308 (5). The application was granted, the court ordering the plaintiffs to serve a copy of the summons with notice upon both the individual defendant's malpractice liability insurer, the appellant Medical Liability Mutual Insurance Company, and his former medical associate in New York. The insurer's subsequent motion to vacate the order permitting expedient service was denied, and upon reargument, Special Term adhered to its original decision. The insurer now appeals.
We reject the insurer's contention that the plaintiffs failed to meet the impracticability requirement of CPLR 308 (5), which provides for service upon a party "in such manner as the court * * * directs, if service is impracticable under paragraphs one, two and four of this section". The papers submitted in support of the application for an order of expedient service included affidavits from the injured plaintiff, her attorney, and a process server. These affidavits detailed the repeated attempts to personally serve the individual defendant and the inability of the plaintiffs to determine his whereabouts despite substantial inquiry. CPLR 308 (5) requires a showing of impracticability of other means of service, but does not require proof of due diligence or of actual prior attempts to serve a party under each and every method provided in the statute (see, Salesi v. Nieves, 93 A.D.2d 858; Markoff v. South Nassau Community Hosp., 91 A.D.2d 1064, affd 61 N.Y.2d 283; Liebeskind v Liebeskind, 86 A.D.2d 207, affd 58 N.Y.2d 858; Coyne v. Coyne, 83 A.D.2d 774). In view of the facts of this case, we find that Special Term acted properly in authorizing expedient service.
Moreover, we note that under these unusual circumstances, Special Term's order was reasonably calculated to apprise the individual defendant of the pending action (see generally, Bossuk v. Steinberg, 58 N.Y.2d 916; Dobkin v. Chapman, 21 N.Y.2d 490; Gibson v. Salvatore, 102 A.D.2d 861). Thompson, J.P., Bracken, Weinstein and Kunzeman, JJ., concur.