## Facts

- Plaintiffs, including the estate representatives of Martin H. Wilensky, sued David C. Bergner arising from an April 2, 1972 automobile accident in which Wilensky died the same day.
- At the accident scene, Bergner gave an address at 76 Aster Court, Brooklyn, where he then lived with his parents.
- In February 1973, Bergner moved, married, and established a household at 2729 West 33rd Street, Brooklyn; he did not regularly return to Aster Court.
- About 30 months after the accident, plaintiffs attempted service by going twice to 76 Aster Court and then, on August 27, 1974, affixing the summons and complaint to the door at that address and, on August 29, 1974, mailing copies to the same address.
- Bergner learned of the suit only after his father forwarded the papers to him at his then-current residence.

## Issues

1. Whether substitute service under CPLR 308(4) is valid when the summons is affixed to the door of the defendant’s “last known residence,” rather than the defendant’s actual “dwelling place or usual place of abode” at the time of service.
2. Whether a defendant’s eventual receipt of the papers, and a plaintiff’s good-faith or diligent efforts, can cure statutory noncompliance with CPLR 308(4).
3. Whether the defendant was estopped from challenging service based on having provided the former address at the accident scene.

## Decision

- The Court of Appeals affirmed the Appellate Division’s dismissal for lack of personal jurisdiction.
- Service was ineffective because the summons was affixed to a former residence that was not Bergner’s dwelling place or usual place of abode at the time of service, as CPLR 308(4) requires.
- The statute’s separate mailing requirement to the defendant’s “last known residence” did not permit affixation at that last known address.
- Actual notice achieved through the father’s forwarding of papers did not validate a defective mode of service.
- Estoppel did not apply absent proof Bergner engaged in conduct intended to mislead or conceal his whereabouts.

## Legal Principles

- Under CPLR 308(4), affixation must be made at the defendant’s actual place of business, dwelling place, or usual place of abode at the time of service; “last known residence” governs only the mailing component.
- Affixation at a defendant’s former address does not satisfy CPLR 308(4), even if it was the plaintiff’s last known address for the defendant.
- Subsequent, accidental, or indirect receipt of process does not retroactively cure noncompliance with statutory service requirements.
- A defendant is not estopped from contesting service without affirmative misconduct designed to mislead the plaintiff regarding the defendant’s location.
- Findings about diligence in attempting other methods of service do not supply statutory compliance where the affixation location is improper.

## Conclusion

The court held that CPLR 308(4) demands strict compliance with its location requirements: posting must occur at the defendant’s actual dwelling place or usual place of abode (or actual place of business), and posting at a former address is jurisdictionally defective despite later receipt and despite the plaintiff’s efforts.


Feinstein v. Bergner, 48 N.Y.2d 234, 422 N.Y.S.2d 356, 397 N.E.2d 1161 (N.Y. 1979)