Opinion
January 29, 1985
Appeal from the Supreme Court, Oneida County, Grow, J.
Present — Dillon, P.J., Hancock, Jr., Callahan, Denman and Green, JJ.
Order unanimously affirmed, without costs. Memorandum: On January 13, 1984, three years and three days after he was injured in an automobile accident, plaintiff made service of the summons and complaint upon the Secretary of State pursuant to section 253 Veh. Traf. of the Vehicle and Traffic Law. However, the mailing required by subdivision 2 of that section was never made.
On February 14, 1984, plaintiff procured an order, pursuant to CPLR 308 (subd 5) authorizing service by mailing a copy of the summons and complaint to defendant's last known address, delivering a copy of the summons and complaint to defendant's insurance carrier and by publishing a copy of the summons in a Rome, New York, newspaper.
Thereafter defendant moved to dismiss the complaint on the grounds of lack of jurisdiction and that the cause of action was barred by the Statute of Limitations. Special Term held that the action was barred by the Statute of Limitations (CPLR 214) and we affirm.
The issue, as framed by the parties, is whether the service upon the Secretary of State, despite the lack of mailing, tolled the statute until service under the CPLR 308 order had been completed (see Sadek v. Stewart, 38 A.D.2d 655). Acquiring jurisdiction under section 253 Veh. Traf. of the Vehicle and Traffic Law requires substantial compliance with that statute ( Metcalf v Cowburn, 44 A.D.2d 650), and without a mailing, there is not substantial compliance ( Dickinson v. Houston, 97 A.D.2d 665, mot for lv to app den 61 N.Y.2d 606; Metcalf v. Cowburn, supra). The attempted service under the Vehicle and Traffic Law was, therefore, jurisdictionally defective. Since the defendant did not waive the lack of jurisdiction, the statute continued to run ( Yarusso v. Arbotowicz, 41 N.Y.2d 516), and the action was time barred when plaintiff secured his order authorizing service under CPLR 308.
Since the parties have not addressed the issue on this appeal, it would be inappropriate to decide whether plaintiff's unconsciousness for 12 days following the accident equates with the disability of "insanity" as that term is used in CPLR 208, thus to toll the Statute of Limitations (see Eisenbach v Metropolitan Transp. Auth., 62 N.Y.2d 973; McCarthy v. Volkswagen of Amer., 55 N.Y.2d 543; cf. Barnes v. County of Onondaga, 103 A.D.2d 624; Matter of Hurd v. County of Allegany, 39 A.D.2d 499).