| State of New York v Mappa |
| 2010 NY Slip Op 08556 [78 AD3d 926] |
| November 16, 2010 |
| Appellate Division, Second Department |
| State of New York, Respondent, v Baruch Mappa,Appellant, et al., Defendant. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Richard Dearing and SudarsanaSrinivasan of counsel), for respondent.
In an action, inter alia, pursuant to Social Services Law § 461-f (5) to recover anoperating deficit incurred by a receiver, the defendant Baruch Mappa appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), datedJanuary 28, 2010, as denied that branch of the defendants' motion which was pursuant to CPLR3211 (a) (8) to dismiss the action insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendants, inter alia, moved to dismiss the action insofar as asserted against thedefendant Baruch Mappa for lack of personal jurisdiction, contending that the attempt to servehim at his residence did not satisfy the "due diligence" requirement of the "nail and mail" servicestatute pursuant to CPLR 308 (4) and that the process server was not credible. In opposition, theplaintiff presented its process server's affidavit of service made pursuant to CPLR 308 (4) andevidence of Mappa's residence address. Under the circumstances of this case, the affidavit, whichstated that the process server attempted to serve Mappa at his dwelling at different times and ondifferent days, was sufficient to meet the "due diligence" requirement of CPLR 308 (4) (see JPMorgan Chase Bank, N.A. vSzajna, 72 AD3d 902, 903 [2010]; Estate of Waterman v Jones, 46 AD3d 63, 66 [2007]; County of Nassau v Gallagher, 43AD3d 972, 973-974 [2007]; Johnson v Waters, 291 AD2d 481 [2002]).Furthermore, since there was no evidence that Mappa was employed, the plaintiff was notrequired to attempt to serve Mappa at his place of business (see Johnson v Waters, 291AD2d 481 [2002]; Marballie v Lefrak, 201 AD2d 707 [1994]; Matos v Knibbs,186 AD2d 725 [1992]; Mitchell v Mendez, 107 AD2d 737, 738 [1985]). Mappa did notsubmit an affidavit from one with personal knowledge denying receipt of the summons andcomplaint or challenging the accuracy of the allegations in the affidavit of service (seeMarballie v Lefrak, 201 AD2d 707 [1994]; Matos v Knibbs, 186 AD2d 725 [1992];Mitchell v Mendez, 107 AD2d at 738).
Accordingly, the process server properly resorted to service of process pursuant to CPLR[*2]308 (4), and that branch of the defendants' motion which wasto dismiss the action insofar as asserted against Mappa was properly denied.
To the extent that the defendant Martin Rosenberg purports to join in the brief filed by thedefendant Baruch Mappa, no notice of appeal was filed on behalf of Rosenberg. Accordingly, theissues raised on behalf of Rosenberg have not been considered (see CPLR 5515 [1];Carriere v Whiting Turner Contr., 299 AD2d 509, 510 [2002]). Rivera, J.P., Covello,Eng, Leventhal and Austin, JJ., concur.