| Leviton v Unger |
| 2008 NY Slip Op 09363 [56 AD3d 731] |
| November 25, 2008 |
| Appellate Division, Second Department |
| Theodore Leviton, Respondent, v Scott Unger et al.,Appellants. |
—[*1] Richman & Levine, P.C., Garden City, N.Y. (Seth A. Levine of counsel), forrespondent.
In an action to recover damages for breach of contract, the defendants appeal from so muchof an order of the Supreme Court, Nassau County (Bucaria, J.), dated October 17, 2007, asdirected a hearing to determine the validity of service of process on the defendant Scott Unger toaid in the disposition of that branch of their motion which was to dismiss the complaint insofaras asserted against that defendant pursuant to CPLR 3211 (a) (8), and denied that branch of theirmotion which was to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the ground that itwas barred by the doctrine of res judicata.
Ordered that on the Court's own motion, the defendants' notice of appeal from so much of theorder as directed a hearing is treated as an application for leave to appeal from that portion of theorder and leave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereof directing ahearing to determine the validity of service of process on the defendant Scott Unger andsubstituting therefor a provision granting that branch of the defendants' motion which was todismiss the complaint insofar as asserted against the defendant Scott Unger pursuant to CPLR3211 (a) (8) for lack of personal jurisdiction; as so modified, the order is affirmed insofar asappealed from, without costs or disbursements.
The two affidavits of the process server establish that, although he attempted to effectpersonal service on the defendant Scott Unger at his home on three different occasions, all wereon weekdays and between the hours of 9 a.m. and 6 p.m., times when it would be expected thatUnger [*2]would be either working or commuting to or fromwork. Additionally, the process server's statement as to any attempts he made to ascertain theplace of employment of Unger were, at best, conclusory and ambiguous, and insufficient to showthat the necessary inquiry was made. Thus, as a matter of law, the affidavits were insufficient toshow the existence of even a factual question as to whether the process server exercised the duediligence necessary to be permitted to serve someone under CPLR 308 (4). Therefore, theSupreme Court should not have directed a hearing to determine the validity of service of processon Unger, but rather, should have found the proof of the required due diligence to be insufficientas a matter of law. Accordingly, that branch of the defendants' motion which was to dismiss thecomplaint insofar as asserted against Unger pursuant to CPLR 3211 (a) (8) for lack of personaljurisdiction should have been granted (see Samuels v Rosenberg, 178 AD2d 639 [1991];Joseph T. Ryerson & Son v Piffath, 132 AD2d 527 [1987]; Sotirakis v United Servs.Auto. Assn., 100 AD2d 931 [1984]).
The defendants' remaining contentions are without merit. Florio, J.P., Angiolillo, McCarthyand Chambers, JJ., concur. [See 2007 NY Slip Op 33467(U).]