Esposito v. BillingsEsposito v. Billings
— Appeals from two orders of the Supreme Court at Special Term (Cholakis, J.), entered April 28, 1983 in Schenectady County, which granted motions by plaintiffs in their respective actions for leave to serve amended complaints and denied the cross motions by defendants Sandra Billings and Alma De Cesare to dismiss the complaints. 11 Plaintiffs, at all times relevant herein, sеrved as officers of the county committee of a major political party of Schenectady County. They seek money damages for alleged libel committed in connection with the publication on November 2, 1981 in the Schenectady Gazette, an area newspaper, of a political advertisement allegedly defaming them. The advertisement contained а cartoon which plaintiffs claim depicted plaintiff Louis Esposito as “Fat Hewy” and plaintiff Edward Cammerota as “Fast Eddie”. It was alleged that the advertisement imputed criminal conduct on the part of plaintiffs in connection with the disаppearance of funds from the City of Schenectady Police Court. The amended complaint alleged furthеr particulars concerning the alleged libelous material. It was claimed that defendants Sandra Billings and Alma De Cesаre submitted the advertisement for publication as members of the Committee to Save Our Courts. Also, these defendants werе said to have distributed a similar cartoon throughout Schenectady. The actions against the Daily Gazette Company, the publisher of the newspaper, have been discontinued. H Special Term granted plaintiffs’ motion to serve аmended complaints and denied defendants’ cross motions to dismiss the complaints for failure to state a cause of action, for lack of personal jurisdiction due to improper service and improper notice. These appeals ensued. 11 The orders entered at Special Term should be modified by reversing so much thereof as denied defendants’ cross motions to dismiss with respect to defendant De Cesare; the cross motions to dismiss should be granted with respect to her, and, as so modified, the orders should be affirmed. H Defendant Billings’ argument that the service of process on her was jurisdictionally defective is without merit. She was personally served with a summons and notice in each aсtion on November 4, 1982 by a deputy sheriff in accord with CPLR 308 (subd 1). The summons and notice in each action had been delivered tо the Schenectady County Sheriff prior to expiration of the applicable limitation period and Billings was servеd within 60 days after the period of limitation would have expired. Thus, Billings was timely served and the actions timely commenced аgainst her (CPLR 203, subd [b], par 5). 11 However, personal service was not made on defendant De Cesare. The process sеrver left the summons with notice in each action with her husband at the house believed to be her residence at 666 Crane Street in the City of Schenectady on October 29,1982. On the same date, the summons and notice were mailed to De Cesаre at the same address in an attempt to complete service under CPLR 308 (subd 2). On November 4,1982, a deputy sheriff, after finding no one at home at 666 Crane Street on visits on November 1 and November 3, sought to effect service under the “nail and mail” provisions of CPLR 308 (subd 4). De Cesare argues that 666 Crane Street was not her dwelling place or usual place of abode so that service was not effected under either subdivision 2 or subdivision 4 of CPLR 308.11 Proof that De Cesare was separated frоm her husband since September 23,1980 and that she has resided at 1214 Main Street in Schenectady since December 15, 1981 was prоvided