FEINSTEIN y. BERGNER NY. 1161 ‘Cheas397 E24 1161 48 NY.2d 234 dence” of defendant; therefore, where Michele FEINSTEIN et al, as Adminis- ‘trators of the Estate of Martin H. Wilensky, Deceased, Appellants, David C. BERGNER, Respondent. Court of Appeals of New York. Oct, 23, 1979. In an action to recover damages for ‘wrongful death and conscious pain and suf- fering, defendant appealed from an order of the Supreme Court, Kings County, Franklin W. Morton, Jr, J, denying. his ‘motion to dismiss the complaint for lack of personal jurisdiction. The Supreme Court, Appellate Division, 62 AD.24 1049, 404 N.YS24 153, reversed and plaintiffs ap- pealed, ‘The Court of Appeals, Gabriel held that where summons was affixed to door of defendant's last known residence rather than his actual abede purported sub- stituted service was ineffective and fact that defendant subsequently received actual notice of the suit did not eure such defect. Order of Appellate Division affirmed. 1, Appeal and Error 4782, 3), 358, Orders setting aside service of process ‘are ordinarily considered nonfinal and are not appealable to Court of Appeals as a matter of right; however, where the com- plaint is dismissed in connection with order setting aside service, the order is deemed final and an appeal may be taken. Const. art. 6 § 3, subd. b(I); CPLR 580%(a) 2, Process @=81 In substitute serviee provision, permit- ting plaintiff to mail duplicate process to defendant at his last known address and requiring affixing of process to door of defendant's “actual place of business, dwell- ing place or usual place of abode” terms “dwelling place” and “usual place of abode” could not be equated with “last known resi- summons was affixed to door of defend- fant’s last known residence rather than his actual abode, purported substitute service was ineffective and fact that defendant subsequently received actual notice of the suit did not cure such defect. CPLR 308, subd. 4 3, Process 78 Allegations that defendant voted from particular address and that he returned there for a brief period following the death of his mother were not sufficient to estab- lish the decree of permanence and stability that is necessarily implied by the term “usual place of abode” in substitute service provision. CPLR 808, subd. 4. 4. Statutes 0202 ‘Where Legislature has used different ‘words in a series, words should not be com strued as mere redundancies. 5. Process €=64 Noties of suit reosived by means other than those authorized by statute cannot serve to bring a defendant within jurisdie- tion of court. 6, Process 166 Defendant was not estopped from rais- 1g defect in service of notice of suit upon jn that summons was affixed to the door of his last known address rather than his actual abode, where plaintiffs failed to demonstrate that defendant engaged in conduct which was ealeulated to prevent them from learning of his new address. CPLR 808, subd. 4. 1. Process &=61 Potential defendants ordinarily have no affirmative duty to keep those who might sue them abreast of their whereabouts. CPLR 808, subd. 4, Herbert M. Horowitz, Gustave G. Rosen- berg, Lawrence M. Rosenberg and David Jaroslawies, New York City, for appellants Michael Wolpineky and Vincent A. DiBla- si, Brooklyn, for respondent,1162. N.Y. OPINION OF THE COURT GABRIELLI, Judge. Li) Plaintiffs appeal from an order of the Appellate Division which dismissed their complaint for failure properly to serve the defendant with process. The outcome ‘of their appesl depends upon the correct interpretation of CPLR 808 (subd. 4), which permits substitute service hy “affixing the ‘summons to the door of either the actual place of business, dwelling place or usual place of abode *'* * of the person to be served” and by “mailing the summons to such person at his last known residence”. ‘The case arises out of an automobile acci- dent which oceurred on April 2, 1972, Plaintiff Pauline Wilensky and her hus: band, Martin Wilensky, who died on the day ‘of the accident, were injured when they were struck by car owned and operated by defendant Bergner. At the time of the accident, Berger was residing with his par- ‘ents at 76 Aster Court, Brooklyn, the ad- dress he gave at the accident scene, Some #0 months after the accident, plain- ‘tiff Pauline Wilensky and the administrator ‘of the deceased Martin Wilensky’s estate attempted to commence an action against Bergner for conscious pain and suffering and wrongful death? Plaintiffs’ process server made two visits to the Aster Court address before affixing the summons and ‘complaint to the door on August 27, 1974 and mailing copies of the papers to the Aster Court address on August 29, Unbeknown to plaintiffs, however, de- fendant Bergner lad moved from his par- ‘ents’ home in February of 1973,. having ‘married and established a household of his ‘own at 2729 West 88rd Street in Brooklyn. Although he returned to his parents’ home for a brief period in February of 1975, when 1.1) Orders seting aside service of process are ‘ordinarily considered nonfinal and hence are hot appealable to this court asa matter of right (e.g. Theaman v. Hindels 300 NY. 673, 01 NE24 826, see N-Y.Const, art. VI. § 3, subd par (1. Where, as here, the complains I= ismissed in connection with the order seting ide service, however, the order Is deemed ‘and an appeal may be taken pursuant (0 397 NORTH EASTERN REPORTER, 2d SERIES his mother diod, Bergner did not regularly frequent the Aster Court address. ‘Thus, at the time the summons and complaint were affixed to the door at 76 Aster Court, that address was not and could no longer be considered defendant's dweling place. Berger ultimately reesived notice that @ suit was pending against him when his fa- ‘ther mailed copies of the summons and eom- plaint to his home. He thereafter timely moved to have the action dismissed on the ground that the attempted service was inef- festive. Special Term denied the motion, finding at the outsot that plaintiff had ex- cercised “due diligence” in attempting to effect. personal service betore resorting to tho substitute “nail and mail” method of service authorized by CPLR 808 (subd. 4). ‘As to defendant's contention that plaintift had failed to comply with the CPLR 908 (cuba. 4) requirement of affixing process to the door of the “dwelling place” or “usual place of abode”, Special Term concluded that defendant: should be estopped from raising such a defense since his father’s actions in mailing the summons and com- plaint to his new address rather than re- turning thom to plaintiffs through the rails “effectively concealed” from plain- tiffs the fact that Borgner had moved. On appeal to the Appellate Division, however, this determination was reversed. Although the Appellate Division agreed that due dil- sence had been exercised in the plaintiffs’ preliminary efforts to effect service by per- sonal delivery, it found the purported sub- stitute service defective and, concluding that there could be no estoppel in the ab- sence of fraud or misrepresentation on the part of defendant, granted Berger's mo- tion to dismiss. [2-4] At the outset, we note that we leave undisturbed the lower courts’ findings CCPL seot (ob. a) (Coben and Karger, Pow: ofthe New York Court of Ape 2 Although there would appear to be some question regarding the Uneliness of plaints ‘wrongful death cause of action (see EPTL 5-4, 1, that question i not presented to Us in this appeal.FEINSTEIN ¥. BERGNER N.Y. 1163 (Chee 307 N24 1161 that “due diligence” was exercised in the first instance, as we are unprepared to say ‘that the finding was erroneous as a matter ‘of law. We accordingly assume that the use of substitute service under CPLR 808 (subd. 4) was authorized in this case and we ‘address only the question whether the pur- ported service conformed to the require rmonts of the statute, We conclude that it did not, ‘The “nail and mail” provision of the CPLR permits a plaintiff to mail duplicate process to the defendant at his last known residence, but clearly requires that the “palling” be done at the defendant's “actual place of business, dwelling place or usual place of abode”. While there may be some ‘question as to whether there is a distinction between “dwelling place” and “usual place of abode"? there has never been any serious doubt that neither term may be equated ‘with the “Iaat Known residence” of the de- fendant (Chalk v. Catholie Med. Center of Brooklyn & Queens, §8 A.D.2A 822, 396 N.Y. 2d 864; Polansky v. Paugh, 23 A.D2d 643, 258 NYS2d 629; Entwistle v. Stone, 53 Mise-24 227, 278 N-Y.S2d 19; McLaughlin, Practice Commentaries, McKinney's Cons Laws of N-Y,, Book 7B, CPLR 908:4, p. 208; see Siegel, New York Practice, § 72, p. 78). Indeed there are cogent reasons for pre serving the distinction, apart from the obvi- ‘ous principle that whore the Legislature has used different words in a series, the words should not be construed as mere redundan- ces (see MeKinney’s Cons.Laws of N.Y. Book 1, Statutes, § 281), ‘Plaintiffs contend that, even if the summons and complaint were not affixed at defendant's “dwelling place’ service should nonetheless be deemed proper’ because the papers were “alled” fo the door of Bergner's "usual place of abode’, his parent's home. While we age In principle that there may be a distinct between "dwelling piace” and “usual place of ‘abode (eee Rich Prods. Corp. v. Diantond, 51 Mise2d 675, 273 NY.S24 687, MeLaughlin, Practice Commentaries, McKinney's Cons Laws of N.Y, Book 7B, CPLR 308:2, p. 207; 1 Welnstein-Korn-Miller,” NY.CWvPrac., par 306,13), we need not decide that question here, Bince plain’ allegations are not sufficient to Support the conclusion that defendant had a “sual place of abode" at the Aster Court ad dress eeparate from his "ewelling place” atthe West 89rd Street address.” Plaintiffs have al Under the original version of CPLR 808, service by any method other than personal delivery to the defendant was impermissible unless prior “diligent” efforts had been made to serve the defendant in person. Many commentators, however, criticized this requirement as overly stringent, con- tending that it was the primary cause of the disreputable practice known as “sewer service” (Sixteenth Ann Report of NY Judi- cial Conference, 1971, p. 38 see MeLaughlin, Practice Commentaries, McKinney's ConaLaws of N-Y., Book 7B, CPLR 808:2, p. 206; 1 Weinstein-Korn-Mil- ler, N.Y.Civ.Prae., par. 908.18). According- ly, when the statute was revised in 1970 (L.1910, ch. 852), the Legislature attempted to strike a balance between the need to ‘enoure that defendants receive actual notice ‘of the pendency of litigation against them and the need to build into the statute suffi- cient flexibility to discourage cynical prac- tees such as “sewer service”, To nccom- plish this goal, the Legislature enacted an amendment which permitted plaintiffs to serve by delivering process to “a person of suitable age and diseretion” at the defend- ant’s dwelling place or usual place of abode ‘and mailing copies of the papers to the defendant's “last known residence” ¢ cut first having to attempt to effect service by personal delivery (CPLR 808, subd. 2). ‘The Legislature stopped short, however, of ‘making any substantive changes in the “pail and mail” method of substitute ser~ leged only that Bergner voted from the Aster CCourt address in 1974 and returned there for @ bref period in 1975, Such facts, however, are not sufictent to establish the degree of perma. fhenoe and stablty thet is necessarily Implied by the term “usual place of abode” (see Smlth- town Gen. Hosp, v- Quilivan, 88 Misc-24 1031, 389 NV.S2d-776,_ 1. Welnstein-Korn-Mille N.C Prac, par. 308.13). 4. The 1970 revision of CPLR 308 required the summons to be taled (othe defendants “lost knowin address" (L.1970, ch. 852). The work fesidence” was substituted for the word “ad- dress”, however, in 1971 (LIST, ch. 176). No substantive change in the meaning ofthe sat tte was intended (Seventeenth Ann, Report of N&dudelal Conference, 1972, p- A38)