31 Misc. 2d 52 | N.Y. Sup. Ct. | 1961
Motion to set aside the purported service of a summons, pursuant to sections 253 and 254 of the Vehicle and Traffic Law.
Section 253 requires, inter alia, that proof of service by mail upon a nonresident be supported by either the return receipt accompanying a registered letter or by the returned envelope showing that receipt of the letter was refused. Here the summons and complaint were mailed to defendant Marshak’s last-
At all events, the presumption of receipt of the letter or, at least, notice to a defendant cannot arise from a letter stamped ‘ ‘ unclaimed ’ ’. If such were the law, a plaintiff could direct a letter to any address, whether connected with a defendant or not, thereafter show a letter that was marked unclaimed and accomplish valid service thereby. This was obviously not the type of service — reasonably calculated to give a defendant notice of a proceeding — envisioned by the statute.
Somewhat analogous is the situation where a letter is returned and marked “ moved, left no address ” and where it has been held that such marking is not a return receipt or a showing that the letter was refused and, therefore, not compliance with the statute (see Harvey v. Fussell, 13 Misc 2d 602, affd. 7 A D 2d 742; Bernardt v. Scianimanico, 21 Misc 2d 182). The motion is, accordingly, granted, and the service set aside and vacated.