Mastropierro v. Bennett , 650 N.Y.S.2d 287 ( 1996 )

In an action to recover damages for legal malpractice, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Lama, J.), dated December 7, 1995, as, upon the granting of the plaintiff’s motion for a hearing to determine the validity of service of process, determined that service of process was valid pursuant to CPLR 308 (4) and struck the affirmative defense of lack of personal jurisdiction.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the complaint is dismissed for lack of personal jurisdiction.

The plaintiff attempted to serve the defendant pursuant to the "affix and mail” provisions of CPLR 308 (4). However, the requisite mailing did not bear the legend "personal and confidential” on the envelope as required by the statute (see, CPLR 308 [4]; Pesner v Fried, 166 AD2d 512; Broomes-Simon v Klebanow, 160 AD2d 973). Since the plaintiff failed to comply with the prescribed conditions, personal jurisdiction over the defendant was not acquired, and the complaint should have been dismissed. Mangano, P. J., O’Brien, Pizzuto, Goldstein and Luciano, JJ., concur.