| County of Nassau v Gallagher |
| 2007 NY Slip Op 06819 [43 AD3d 972] |
| September 18, 2007 |
| Appellate Division, Second Department |
| County of Nassau, Respondent, v Seamus Gallagher,Appellant. |
—[*1] Lorna B. Goodman, County Attorney, Mineola, N.Y. (Gerald R. Podlesak of counsel), forrespondent.
In a civil forfeiture action pursuant to Administrative Code of the County of Nassau §8-7.0 (g) (4) (L 1939, chs 272, 701-709, as amended), the defendant appeals (1), as limited by hisbrief, from so much of an order of the Supreme Court, Nassau County (LaMarca, J.), enteredApril 12, 2006, as, upon reargument, in effect, vacated a prior order of the same court datedNovember 30, 2005, granting that branch of his prior motion which was to dismiss the complaintpursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction, denied that branch of his priormotion, and granted that branch of the plaintiff's motion which was for summary judgment on thecomplaint, and (2) a judgment of the same court entered July 19, 2006, which, upon the orderentered April 12, 2006, inter alia, declared that the defendant's vehicle, a certain 2004 Toyotaautomobile, was forfeited pursuant to Administrative Code of the County of Nassau §8-7.0 (g) (4). The notice of appeal from the order entered April 12, 2006 is deemed also to be anotice of appeal from the judgment (see CPLR 5501 [c]).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.[*2]
The appeal from the intermediate order must bedismissed because the right of direct appeal therefrom terminated with the entry of judgment inthe action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appealfrom the order are brought up for review and have been considered on the appeal from thejudgment (see CPLR 5501 [a] [1]).
Contrary to the defendant's contention, the Supreme Court properly determined that theattempts to serve the defendant at his residence satisfied the "due diligence" requirement forso-called "nail and mail" service under CPLR 308 (4) (see Johnson v Waters, 291 AD2d481 [2002]; Matos v Knibbs, 186 AD2d 725 [1992]; Mitchell v Mendez, 107AD2d 737, 738 [1985]). Where four attempts to serve the defendant at his residence included anattempt on a late weekday evening and an attempt on an early Saturday morning, it was notnecessary that the plaintiff, County of Nassau, attempt to serve the defendant at his workplace(cf. County of Nassau v Long, 35AD3d 787, 788 [2006]; County ofNassau v Letosky, 34 AD3d 414 [2006]; County of Nassau v Yohannan, 34 AD3d 620, 621 [2006];Earle v Valente, 302 AD2d 353, 353-354 [2003]). Accordingly, upon reargument, theSupreme Court properly, in effect, vacated its prior order granting that branch of the defendant'sprior motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (8) for lack ofpersonal jurisdiction, and properly denied that branch of the defendant's prior motion.
Moreover, in support of that branch of its motion which was for summary judgment on thecomplaint, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). In opposition, thedefendant failed to raise any triable issues of fact with regard to his defenses. The plaintiffcommenced this civil forfeiture action after the defendant pleaded guilty to violating Vehicle andTraffic Law § 1192 (1). Since the defendant remained in possession of his vehicle duringthe pendency of the action, and the Administrative Code of the County of Nassau § 8-7.0(g) (4) (f) provides the defendant with post-forfeiture relief should the forfeiture cause substantialand unwarranted hardship, the defendant's due process rights were not violated in the absence ofa hearing (cf. County of Nassau vCanavan, 1 NY3d 134 [2003]). Accordingly, the Supreme Court properly granted thatbranch of the plaintiff's motion which was for summary judgment on the complaint (seeWinegrad v New York Univ. Med. Ctr., supra).
The defendant's remaining contentions are without merit. Crane, J.P., Goldstein, Dillon andCarni, JJ., concur.