Cox v. Axelrod , 136 Misc. 2d 918 ( 1987 )

OPINION OF THE COURT

Edwin Kassoff, J.

Petitioner brings this CPLR article 78 proceeding to annul and reverse a determination by respondents. Respondents cross-move for an order dismissing the petition on the ground of improper service.

CPLR 7804 (c) requires in a proceeding commenced pursuant to CPLR article 78 that service of a notice of petition and petition be made upon the respondent. CPLR 307 provides that where personal service upon a specified officer of a State agency is required to effect service on the agency, personal service shall be made upon such officer, the chief executive officer of such agency or to a person designated by him.

Pursuant to CPLR 307 the respondent, Department of Health, designated certain Department attorneys located in the Division of Legal Affairs in Albany to accept service.

Petitioner’s attorney served the notice of petition at respondent’s New York City office, located at 10 East 40th Street. While conceding that the applicable statutes and regulations require that service be made in Albany, petitioner’s attorney argues that an attorney in respondent’s Albany office authorized service on the New York City office and that respondents are therefore estopped from raising the defense of improper service.

The doctrine of estoppel is generally not available against the State when acting within its statutory or regulatory authority, irrespective of any representations made by a State employee or official (Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88; Matter of Gavigan v McCoy, 37 NY2d 548). Estoppel should be allowed against the State only if failure to do so would defeat a right legally and rightfully obtained; it cannot be used to create a right (Matter of Leizer v Ambach, 91 AD2d 1117; Matter of McLaughlin v Berle, 71 AD2d 707, affd 51 NY2d 917).

In this case petitioner’s attorney chose to make service on respondent’s New York City office instead of the proper office in Albany. Petitioner cannot rely on an alleged representation by an attorney in respondent’s Albany office to create a right to make service in a manner not provided for by statute or department regulation.

Accordingly, the petition is dismissed.