| McSorley v Spear |
| 2008 NY Slip Op 02976 [50 AD3d 652] |
| April 1, 2008 |
| Appellate Division, Second Department |
| Jerome McSorley, Respondent, v Kay L. Spear,Appellant. |
—[*1] James W. Bradie, Tarrytown, N.Y., for respondent.
In an action to recover on a promissory note, the defendant appeals from an order of theSupreme Court, Westchester County (Bellantoni, J.), entered September 10, 2007, which deniedher motion, inter alia, pursuant to CPLR 3211 (a) (8) to dismiss the complaint on the ground oflack of personal jurisdiction.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion, interalia, pursuant to CPLR 3211 (a) (8) to dismiss the complaint is granted.
According to his affidavit of service, the process server attempted to personally deliver thesummons and verified complaint to the defendant at her home on Friday, January 12, 2007, at7:52 a.m., on Monday, January 15, 2007, at 6:55 p.m., and on Tuesday, January 16, 2007, at11:45 a.m. After all three attempts proved unsuccessful, the process server affixed a copy of thesummons and verified complaint to the defendant's door and thereafter mailed a copy to herresidence (see CPLR 308 [4]). The defendant moved, inter alia, pursuant to CPLR 3211(a) (8) to dismiss the complaint for lack of personal jurisdiction, arguing that the process serverdid not exercise due diligence in attempting to serve her by personal delivery before resorting toservice under CPLR 308 (4), so-called "nail and mail" service. Specifically, citing the affidavit ofservice, the defendant argued that the process server never attempted to learn her place ofbusiness and serve her there before resorting to service under CPLR 308 (4). The defendantadmitted, however, that her business, the boarding of horses, was located on the same plot ofland on which her home was located and two adjoining plots [*2]of land. The Supreme Court denied the defendant's motion todismiss. We reverse.
Under the Civil Practice Law and Rules, the preferred methods of personal service on anindividual are by delivering the summons to the defendant (see CPLR 308 [1]), or bydelivering the summons to a person of suitable age and discretion and mailing another copy ofthe summons to the defendant's last known residence or actual place of business (seeCPLR 308 [2]). If service cannot be effected by those methods "with due diligence," CPLR308 (4) permits so-called "nail and mail" service, which entails affixing the summons to the doorof the defendant's "actual place of business, dwelling place or usual place of abode," and bymailing the summons either to the defendant's last known residence or actual place of business(CPLR 308 [4]). This Court has repeatedly emphasized that "the due diligence requirement ofCPLR 308 (4) must be strictly observed, given the reduced likelihood that a summons servedpursuant to that section will be received" (Gurevitch v Goodman, 269 AD2d 355, 355[2000]; see County of Nassau v Letosky,34 AD3d 414, 415 [2006]; O'Connell v Post, 27 AD3d 630, 631 [2006]; Lemberger v Khan, 18 AD3d 447[2005]; see generally Estate ofWaterman v Jones, 46 AD3d 63 [2007]). What constitutes due diligence is determinedon a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but ontheir quality (see Estate of Waterman v Jones, 46 AD3d at 66).
The process server's three attempts to personally deliver the summons and verified complaintto the defendant at her home, which, unbeknownst to the process server, adjoined her place ofbusiness, did not constitute due diligence. The process server failed to make "genuine inquiriesabout the defendant's whereabouts and place of employment" (Estate of Waterman v Jones, 46 AD3d63, 66 [2007]; see Sanders v Elie,29 AD3d 773, 774 [2006]; Kurlander v A Big Stam, Corp., 267 AD2d 209, 210[1999]). Rivera, J.P., Ritter, Carni and Leventhal, JJ., concur.