| Commissioners of State Ins. Fund v Khondoker |
| 2008 NY Slip Op 07606 [55 AD3d 525] |
| October 7, 2008 |
| Appellate Division, Second Department |
| Commissioners of State Insurance Fund, Respondent, v AbdulKhondoker, Doing Business as AKM General Construction, Appellant. |
—[*1] Gregory J. Allen, New York, N.Y. (Edwin Rivera of counsel), for respondent.
In an action, inter alia, to recover on an account stated, the defendant appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Nassau County (Lally, J.), entered September6, 2007, as upon, in effect, granting reargument, adhered to its original determination in an orderentered February 16, 2006, denying his motion pursuant to CPLR 5015 (a) (4) to vacate a clerk'sjudgment of the same court entered August 22, 2005, upon his default in appearing or answering thecomplaint, in favor of the plaintiff and against him in the principal sum of $35,520.27, and pursuant toCPLR 3211 (a) (8) to dismiss the complaint.
Ordered that the order entered September 6, 2007, is reversed insofar as appealed from, on thelaw, with costs, upon reargument, the defendant's motion pursuant to CPLR 5015 (a) (4) to vacate theclerk's judgment and pursuant to CPLR 3211 (a) (8) to dismiss the complaint is granted, and the orderentered February 16, 2006 is modified accordingly.
Upon reargument, the defendant's motion pursuant to CPLR 5015 (a) (4) to vacate the clerk'sjudgment entered upon his default in appearing or answering, and pursuant to CPLR 3211 (a) (8) todismiss the complaint, should have been granted. The purported service of process under CPLR 308(4) was ineffective, since it did not comply with CPLR 308 (4) (see Feinstein v Bergner, 48NY2d 234, 241 [1979]; Tetro v Tizov, 184 AD2d 633 [1992]; Gibson v Salvatore,102 AD2d 861, 862 [1984]). The defendant submitted evidence demonstrating that the place wherethe summons was affixed was not his [*2]dwelling place or usual placeof abode at the time service was purportedly made. In opposition, the plaintiff's evidence demonstratedthat the summons was affixed to the defendant's last known residence. Since the summons was affixedto the door of the defendant's last known residence rather than his usual place of abode, the purported"nail and mail" service was ineffective and personal jurisdiction was not acquired over the defendant (see In Ja Kim v Dong Hee Han, 37 AD3d662 [2007]; Bank One Natl. Assn. vOsorio, 26 AD3d 452 [2006]; European Am. Bank & Trust Co. v Serota, 242AD2d 363 [1997]; 2837 Bailey Corp. v Gould, 143 AD2d 523 [1988]). Skelos, J.P., Ritter,Dillon, Carni and Leventhal, JJ., concur.