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Young v. Bunny Bazaar Inc.

September 18, 1969

FRANCES YOUNG AND KENNETH E. YOUNG, PLAINTIFFS,
v.
BUNNY BAZAAR, INC. AND GARY HUGHES, DEFENDANTS



Belopolsky, J.c.c. (temporarily assigned).

Belopolsky

This matter came before the court on motion of the attorney for defendants to dismiss plaintiffs' complaint pursuant to R.R. 4:12-2 because of the lack of jurisdiction over the person of defendants due to insufficiency of service of process.

The case arises out of an accident which occurred on July 8, 1966. The complaint was filed on July 2, 1968. On July 11, 1968 summons was issued and served upon the New Jersey Director of the Division of Motor Vehicles pursuant to N.J.S.A. 39:7-1 et seq. because both defendants were nonresidents of the State of New Jersey. However, the certified mail sent by the Director of Motor Vehicles to defendants was returned marked "unknown" for one defendant and "unclaimed" for the other. On September 6, 1968 service pursuant to N.J.S.A. 39:7-3(c) was initiated and proved to be similarly unsuccessful. Numerous other attempts by plaintiff to locate either defendant also proved futile.

On February 17, 1969 plaintiff directed a letter to Crawford & Company, the insurance adjusting firm for defendant Bazaar's insurance carrier. A copy of the summons and complaint was enclosed for Crawford & Company's perusal. Settlement negotiations were then entered into with the adjusting firm and continued up until the time of this motion. On April 25, 1969 a motion to dismiss for lack of

prosecution was denied. On May 16, 1969 the sheriff of Philadelphia County, Philadelphia, Pennsylvania, served the summons and complaint on George Chapman of Crawford and Company, allegedly pursuant to R.R. 4:4-4(j) and 4:4-5(a). On August 1, 1969 Crawford and Company moved under R.R. 4:14-2 to dismiss the complaint for lack of jurisdiction over the person of defendants due to insufficiency of service of process. Plaintiff, in opposing the motion, relies on Rudikoff v. Byrne , 101 N.J. Super. 29 (Law Div. 1968). In that case defendant, a New York resident, moved without notifying the New York Department of Motor Vehicles of his new address, as required by New York Law. After similar diligent efforts to locate defendant were unsuccessful, service was made upon defendant's insurance carrier by registered mail sent to the carrier's New York office.

The court found service insufficient on two grounds. First, R.R. 4:4-4(j) had not been complied with because "a copy of the summons and complaint was not sent to Byrne 'addressed to his dwelling house or usual place of abode.'" 101 N.J. Super. , at 34. Secondly, the court found that R.R. 4:4-5(a) had not been satisfied because service was not made by any of the persons described in the rule. Id. , at 36.

However, the court felt that justice dictated that plaintiff should not be deprived of his right to prosecute the action, especially since it was defendant's own breach of a legal duty which caused the difficulty in service. On grounds of equitable estoppel and the demands of justice, the court allowed plaintiff to serve process again, this time complying with the rules.

This left the question of whether service upon the insurance carrier could be made under New Jersey law and consistent with due process.

Rule R.R. 4:4-4(j) (now R. 4:4-4(e)) reads

The court found that under New York law, specifically, Keller v. Rappoport , 21 N.Y. 2 d 490, 289 N.Y.S. 2 d 161, 236 N.E. 2 d 451 (Ct. App. 1968), service could be made "by mailing a copy of the summons and complaint to the defendant's last-known address, and (2) by delivering copies thereof to the defendant's insurance carrier." 101 N.J. Super. , at 36. Thus R.R. 4:4-4(j) was satisfied. The court did not decide whether such service would be authorized solely by New Jersey law in the absence of the New York decisions.

The court also found that the New York procedure was consistent with due process. In Keller the court relied on Mullane v. Central Hanover Bank & Trust Co. , 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950), wherein the Supreme Court said "'it has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits' and does not render the service unconstitutional." 289 N.Y.S. 2 d , at 171, 236 N.E. 2 d at 458, quoting 339 U.S. , at 317, 70 S. Ct. , at 658.

In Walker v. City of Hutchinson , 352 U.S. 112, 77 S. Ct. 200, 1 L. Ed. 2 d 178 (1956), the Supreme Court, in ...


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