Feinstein v. Bergner

In April 1972, Pauline Wilensky (plaintiff) and Martin Wilensky were struck by a vehicle that David Bergner (defendant) owned and operated. At the time of the accident, Bergner lived with his parents. In 1976, Pauline and Michele Feinstein (plaintiff), the administrator of Martin’s estate, sued Bergner. Pauline and Feinstein tried to serve Bergner with a summons and complaint (collectively, documents) pursuant to Civil Practice Law and Rules § 308(4), which authorized so-called nail-and-mail service of process if a plaintiff could not, despite exercising due diligence, deliver the documents directly to the defendant or to a person of suitable age and discretion. Per § 308(4), in such an event, a plaintiff could serve the defendant by affixing the documents at the defendant’s actual place of business, dwelling place, or place of abode and by mailing copies to the defendant’s last known residence. Pauline and Feinstein affixed the documents to Bergner’s parents’ home and mailed copies to Bergner’s parents’ address. However, Pauline and Feinstein did not know that in 1973, Bergner moved elsewhere in Brooklyn. Bergner’s father eventually mailed the documents to Bergner, who moved to dismiss the complaint on the ground that he was not properly served. In response, Pauline and Feinstein argued that affixing the documents to Bergner’s last known residence was sufficient and that Bergner should be equitably estopped from asserting improper service. The supreme court ruled that Pauline and Feinstein properly served Bergner, but the appellate division reversed. Pauline and Feinstein appealed.