Broomes-Simon v. Klebanow

In an action to recover damages for medical malpractice, the plaintiffs appeal from an order of the Supreme Court, Kings County (Pizzuto, J.), dated March 2, 1989, which granted the respondents’ motion for summary judgment dismissing the complaint insofar as it is asserted against them, on the ground of lack of jurisdiction. Ordered that the order is affirmed, with costs. The plaintiffs’ process server attempted to avail himself of the amendment to CPLR 308 (2), which governs substituted service, authorizing that the requisite mailing be made to the actual place of business of the person to be served (see, L 1987, ch 115, § 1). At bar, not only did the envelopes in which the summonses were mailed bear endorsements which arguably violate the statutory prohibition against indications that the sender is an attorney or that the communication "concerns an action” against the addressee, they failed to bear the legend "personal and confidential” as required by statute (CPLR 308 [2]). Since the plaintiffs’ process server failed to comply with the conditions prescribed for the mode of substituted service utilized, jurisdiction over the respondents was not acquired (see, Macchia v Russo, 67 NY2d 592; Feinstein v Bergner, 48 NY2d 234; Schurr v Fillebrown, 146 AD2d 623). Thompson, J. P., Brown, Kunzeman and Harwood, JJ., concur.