Can a Driving Abstract Help Establish Where I Lived for "Service" of Legal Papers?
Yes, a driving abstract or record can be a piece of supporting evidence to help prove where someone lives for legal service. This document typically contains the driver's address as registered with the Department of Motor Vehicles (DMV). It is often used to show a person's residence when the abstract was issued.
However, it's important to remember that:
- The address might be outdated if the individual has moved and not updated their information with the DMV.
- Legal service often requires the most current and accurate address to ensure proper notification, so additional evidence may be necessary to establish residency.
- Courts might require corroborative evidence such as utility bills, lease agreements, or other government-issued documents.
Therefore, while a driving abstract can be helpful, it should be used with other forms of evidence to prove residency for legal service.
What is an "Actual Dwelling Place" or "Usual Place of Abode under New York CPLR § 308?
The term "dwelling place or usual place of abode" under CPLR § 308 refers to the location where a person customarily resides. This can include their primary residence where they live and conduct their daily activities. Factors such as voter registration, property ownership, residence in the city's directory, billing address for utilities, and maintenance of a local bank account may be considered in determining one's dwelling place or abode. CPLR § 308 emphasizes the importance of strict adherence to its requirements for serving a summons, including the precise language and the actual place of business, dwelling place, or usual place of abode of the person to be served.
26 Key New York Legal Decisions Defining 'Actual Dwelling Place' or 'Usual Place of Abode' with Reference to DMV Records
The borrower's failure to notify the Department of Motor Vehicles (DMV) of her new address did not preclude her from challenging the lender's service at her previous address, as there was no evidence of reliance on the DMV address or intent to evade service. LCS Capital, LLC v. Hatlestad, 2022, 176 N.Y.S.3d 442.
The marital residence in New York was the mortgagor's “usual place of abode,” even though he lived in Florida for business, as he never changed his address with the post office or DMV and visited his wife annually in New York. Argent Mortg. Co., LLC v. Vlahos, 2 Dept. 2009, 66 A.D.3d 721, 887 N.Y.S.2d 225.
Service of summons and complaint was valid as the marital residence remained the mortgagor's “usual place of abode” after moving in with his mother; he never established a permanent alternative residence or notified the DMV of a new address. CC Home Lenders v. Cioffi, 294 A.D.2d 325, 742 N.Y.S.2d 101 (2 Dept. 2002).
Service was invalid where the defendant had moved and notified the DMV of his new address, and service was not affixed to his actual place of business or residence. LaSorsa v. Corrigan, 2 Dept. 1998, 256 A.D.2d 313, 681 N.Y.S.2d 300.
The defendant was not estopped from contesting improper service made at a DMV-listed address, as the plaintiff knew the defendant did not live at the served address. Kalamadden v. Singh, 2005, 10 Misc.3d 328, 802 N.Y.S.2d 352, affirmed 19 Misc.3d 23, 855 N.Y.S.2d 819, vacated 63 A.D.3d 1007, 882 N.Y.S.2d 437.
Attempts to serve summons and complaint failed due diligence as the process server did not check with the DMV to ascertain the defendant's residence. Spath v. Zack, 36 A.D.3d 410, 829 N.Y.S.2d 19 (1st Dept. 2007).
The driver was estopped from challenging service at a DMV-listed address in a personal injury action as he failed to notify the DMV of his change of residence. Hidalgo v. Cruiser Taxi Corp., 2 Dept. 2012, 101 A.D.3d 950, 957 N.Y.S.2d 222.
In a motor vehicle accident case, the defendant was not estopped from contesting service at a DMV-listed address he no longer resided at, as he had provided correct residential information and notified the DMV after relocating. Kalamadeen v. Singh, 2008, 19 Misc.3d 23, 855 N.Y.S.2d 819, reversed 63 A.D.3d 1007, 882 N.Y.S.2d 437.
Defendant's failure to notify the Department of Motor Vehicles of a change in her address, as required by Vehicle and Traffic Law, estopped her from contesting service of process made at the address contained in her license exhibited at the scene of the accident. Williams v. Yassky 199 A.D.2d 18, 604 N.Y.S.2d 568 (1 Dept. 1993).
An insurer's "nail and mail" service method in a subrogation action was deemed invalid. This method was used at the temporary residence of the defendant's estranged wife instead of the defendant's actual long-term residence. The defendant had consistently lived in his mother's house for 34 years, never relocating before or after the attempted service, and had not updated his address with the Department of Motor Vehicles, the IRS, his workplace, his auto insurer, or his bank. This case emphasizes the importance of serving legal documents at the individual's primary and known address to ensure validity. Merchants Ins. Group v. Coutrier, 59 A.D.3d 602, 873 N.Y.S.2d 223 (2 Dept. 2009).
The mortgagor's mortgaged property was deemed his true residence for service of process in a foreclosure action because he maintained possessions there and did not update his address with the Department of Motor Vehicles or the post office, despite a temporary stay elsewhere. Northeast Sav., F.A. v. Picarello, 232 A.D.2d 384, 648 N.Y.S.2d 145 (2 Dept. 1996).
A New York apartment does not constitute a "dwelling place or usual place of abode" for service of process if the occupant primarily resides out of state and only uses the New York address infrequently. TC Entertainment, Ltd. v. Nelson Film Partners, 714 F.2d 217 (2nd Cir. 1983).
Absence from a dwelling without establishing a new residence maintains the original location as the "dwelling place" for the purpose of service. CSC Holdings, Inc. v. Fung, 349 F.Supp.2d 613 (2004).
Ownership or time spent at a residence does not preclude it from being considered a "dwelling place" or "usual place of abode" for service. CSC Holdings, Inc. v. Fung, 349 F.Supp.2d 613 (2004).
A hearing is necessary to determine if a summons was correctly affixed to a "dwelling place" or "usual place of abode" when facts are disputed. CSC Holdings, Inc. v. Fung, 349 F.Supp.2d 613 (2004).
Serving a summons at the offices of a defendant's company is not valid when the defendant's residence is not established. Gazis v. John S. Latsis (USA) Inc., 729 F.Supp. 979 (1990).
A residence in New York where an Iranian defendant stayed approximately four months per year was considered her “dwelling place” under service of process rules. Palandjian v. Pahlavi, 586 F.Supp. 671 (D.C. Mass. 1984).
An apartment in New York where process was served on a defendant's son could be the “dwelling place” of the defendant, despite the defendant's time spent in other locations. - Karlin v. Avis, 326 F.Supp. 1325 (1971).
Infrequent and occasional use of a New York City apartment does not make it a “dwelling place” or “usual place of abode” for service of process. National Development Co. v. Triad Holding Corp., 131 F.R.D. 408, affirmed 930 F.2d 253, certiorari denied 112 S.Ct. 440, 502 U.S. 968, 116 L.Ed.2d 459 (1990).
Service of process was improper under New York law when defendants were not residing at the address served on the day of service. Triad Energy Corp. v. McNell, 110 F.R.D. 382 (1986).
Delivery of a summons in an apartment building lobby was deemed service at the defendant’s “actual dwelling place.” F. I. duPont, Glore Forgan & Co. v. Chen, 396 N.Y.S.2d 343, 364 N.E.2d 1115 (1977), on remand 58 A.D.2d 789, 396 N.Y.S.2d 660.
A borrower’s primary address as stated in a loan application was sufficient for service of a mortgage foreclosure action, despite claims of residence elsewhere. CitiMortgage Inc. v. Scott, 157 A.D.3d 507, 67 N.Y.S.3d 201 (1 Dept. 2018).
Testimony at a traverse hearing that the defendant did not reside in an apartment building did not constitute false testimony when corroborated by other evidence. Jia Wang v. Dan Zhao, 151 A.D.3d 538, 58 N.Y.S.3d 14 (1 Dept. 2017).
Belief that a spouse would not accept service is insufficient to rebut the presumption of service established by a process server’s affidavit. U.S. Bank National Ass'n v. Martinez, 139 A.D.3d 548, 34 N.Y.S.3d 3 (1 Dept. 2016).
Service was deemed valid when a process server delivered pleadings to a doorman at the defendant's residence, followed by mailing. 2110-2118 ACBP v. Holland-Harden, 118 A.D.3d 461, 987 N.Y.S.2d 369 (1 Dept. 2014).
A defendant's claim that service was not made at their actual dwelling place raised a fact issue requiring a hearing to determine the validity of service and jurisdiction. Kasowitz, Benson, Torres & Friedman v. Cao, 105 A.D.3d 521, 963 N.Y.S.2d 199 (1 Dept. 2013).
See this blog for more about service of papers.
