Morgan Guaranty Trust Co. v. Hauser

— Order, Supreme Court, New York County (Alice Schlesinger, J.), entered March 25, 1991, which denied defendant-appellant’s motion to dismiss the complaint for lack of personal jurisdiction and granted plaintiff’s cross 684 motion for alternative service in the form of nunc pro tunc recognition of a prior service as sufficient pursuant to CPLR 308 (5), unanimously affirmed, with one bill of $250 costs and disbursements of this appeal. Plaintiff, in September 1988, obtained leave to add defendant-appellant, an Austrian citizen, as a party-defendant in this action. On November 26, 1990, acting upon information provided by the original defendant, an attempt was made to serve appellant at a Dutchess County farm. The process server was advised by a 50-year old male with the same last name as appellant, that appellant was not in at that time, whereupon the supplemental summons and complaint was left with him as a person of suitable age and discretion. While the farm has not been shown to be appellant’s dwelling place, usual place of abode, or residence within the meaning of CPLR 308 (2), and while appellant claims an unidentified Austrian residence, affidavits sworn to by her in 1987 and 1991 were executed in San Moritz, Switzerland, and her residence has remained unknown at all times since the 1988 order. However, communications from her counsel immediately after the November 26, 1990 delivery established that she received actual notice of the action. In these circumstances, the IAS court correctly held that service upon appellant pursuant to CPLR 308 (1), (2) and/or (4), within or outside New York, was impracticable, warranting a grant of leave for alternative service pursuant to CPLR 308 (5) (Dobkin v Chapman, 21 NY2d 490; Liebeskind v Liebeskind, 86 AD2d 207, affd 58 NY2d 858; Saulo v Noumi, 119 AD2d 657), and that such alternative service should be recognized nunc pro tunc as of the November 26, 1990 attempt to serve appellant pursuant to CPLR 308 (2) (Rodgers v Rodgers, 32 AD2d 558; 1 Weinstein-Korn-Miller, NY Civ Prac ¶ 308.17). Concur — Sullivan, J. P., Milonas, Kupferman, Ross and Smith, JJ.