Defendant failed to raise in his original motion his argument concerning the nonexistence of the business address to which plaintiff mailed the summons and complaint and amended summons and complaint on June 25, 1998, having left another copy of the pleadings there with a person of suitable age and discretion the previous day, and the IAS court therefore properly declined to consider the argument on reargument (see, William P. Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22, 27, lv denied in part and dismissed in part 80 N.Y.2d 1005 ). In any event, the record indicates that, according to the applicable street signs, defendant's actual place of business is located at 55 Old Turnpike Way, even though his official address might be 55 Old Turnpike Road, and there is no evidence that mail would not be delivered if addressed in the former manner. Furthermore, the record demonstrates that, on two occasions, plaintiff affixed another copy of the pleadings to defendant's residence and thereafter mailed a copy to that address. Accordingly, defendant was properly served pursuant to CPLR 308(2) and the court obtained personal jurisdiction over him.
Since an action is commenced upon the filing of the summons and complaint, not service (see, CPLR 304), the New York County action has priority over the Broome County action (see, White Light Prods., Inc. v. On the Scene Prods., Inc., 231 A.D.2d 90, 96-97). However, in light of that and the fact that the Broome County action includes another party and lacks a complete identity of issues, the IAS court properly exercised its discretion in denying the motion to dismiss and conditionally granting removal and consolidation, subject to approval by the Broome County Court (see, Reliance Ins. v. Am. Elec. Power Co., 224 A.D.2d 235;MediaAmerica, Inc. v. Rudnick, 156 A.D.2d 174). Finally, defendant has failed to demonstrate that the convenience of witnesses and the ends of justice would be promoted by transferring venue to Broome County (see, Velasquez v. C.F.T., Inc., 240 A.D.2d 178).
Motion seeking to enlarge record denied.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.