| Prudence v Wright |
| 2012 NY Slip Op 03157 [94 AD3d 1073] |
| April 24, 2012 |
| Appellate Division, Second Department |
| Erzulie Prudence, Respondent, v Elizabeth V. Wright,Appellant. |
—[*1] Bruce S. Reznick, P.C. (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaacand Jillian Rosen], of counsel), for respondent.
In an action to recover damages for legal malpractice, the defendant appeals from an order ofthe Supreme Court, Kings County (Spodek, J.), dated February 8, 2011, which denied hermotion, in effect, pursuant to CPLR 5015 (a) (4) to vacate a judgment of the same court enteredOctober 30, 2009, upon her default in appearing or answering the complaint, and to dismiss thecomplaint.
Ordered that the order dated February 8, 2011, is reversed, on the law, with costs, thedefendant's motion, in effect, pursuant to CPLR 5015 (a) (4) to vacate the judgment enteredOctober 30, 2009, and to dismiss the complaint is granted, and the complaint is dismissed withleave to the plaintiff to re-serve the defendant within 120 days of the date of this decision andorder.
Where, as here, a defendant moves to vacate a judgment entered upon his or her default inappearing or answering the complaint on the ground of lack of personal jurisdiction, thedefendant is not required to demonstrate a reasonable excuse for the default and a potentiallymeritorious defense (see Harkless vReid, 23 AD3d 622, 622-623 [2005]; Steele v Hempstead Pub Taxi, 305 AD2d401, 402 [2003]). Contrary to the determination of the Supreme Court, the defendant establishedentitlement to relief from default on the ground that she was not properly served with thesummons and complaint pursuant to CPLR 308 (4). The affidavit of service of the plaintiff'sprocess server alleged that the process server attempted to deliver the summons and complaint tothe defendant at her "dwelling house" or "usual place of abode," rather than her actual place ofbusiness, on January 19, 2009, at 7:17 p.m., January 26, 2009, at 6:51 a.m., and February 25,2009, at 4:03 p.m. After all three unsuccessful attempts, the process server affixed a copy of thesummons and complaint to the defendant's door and mailed a copy to the same address, whichwas alleged to be the defendant's "last known residence." Contrary to these averments in theaffidavit of service, the defendant presented proof, inter alia, that the address where service wasattempted, as alleged in the affidavit of service, was in fact her office address.
The defendant established that the plaintiff's process server failed to exercise "due diligence"in attempting to effectuate service pursuant to CPLR 308 (1) or (2) before using the "affix andmail" method pursuant to CPLR 308 (4) (JPMorgan Chase Bank, N.A. v Iancu Pizza,Ltd., 78 AD3d 902, 903 [2010] [internal quotation marks omitted]; see Lombay v Padilla, 70 AD3d1010, 1012 [2010]). [*2]Due diligence was not exercisedbecause two of the three attempts at service were at times when the defendant could notreasonably be expected to be at work, a national holiday (January 19, 2009) and at 6:51 a.m. onJanuary 26, 2009 (see Krisilas v MountSinai Hosp., 63 AD3d 887, 889 [2009]; O'Connell v Post, 27 AD3d 630 [2006]; Earle v Valente,302 AD2d 353 [2003]; Annis v Long, 298 AD2d 340 [2002]). Furthermore, no attempt toeffectuate service was made at the defendant's actual "dwelling place or usual place of abode"(JPMorgan Chase Bank, N.A. v Iancu Pizza, Ltd., 78 AD3d at 903 [internal quotationmarks omitted]; see Earle v Valente, 302 AD2d at 353), nor did the process server makegenuine inquiries to ascertain the defendant's actual residence or place of employment (see McSorley v Spear, 50 AD3d652, 654 [2008]; Estate ofWaterman v Jones, 46 AD3d 63, 66 [2007]).
Under these circumstances, the service of the summons and complaint pursuant to CPLR 308(4) was defective as a matter of law (see JPMorgan Chase Bank, N.A. v Iancu Pizza,Ltd., 78 AD3d at 903; Earle v Valente, 302 AD2d at 354; Gurevitch vGoodman, 269 AD2d 355, 356 [2000]). Since the Supreme Court had not acquired personaljurisdiction over the defendant, the default judgment entered against her was a nullity (see Fleisher v Kaba, 78 AD3d1118, 1120 [2010]; Steele v Hempstead Pub Taxi, 305 AD2d at 402). Accordingly,the defendant's motion, in effect, to vacate the judgment entered upon her default and to dismissthe complaint on the ground of lack of personal jurisdiction should have been granted.
We note that the action was timely commenced by filing the summons and complaint in theoffice of the Clerk of Kings County. Under the circumstances of this case, despite the dismissalof the complaint on the ground of lack of personal jurisdiction, the plaintiff should be permitted,if she be so advised, to re-serve the appellant within 120 days of the date of this decision andorder (see CPLR 306-b; Gurevitch v Goodman, 269 AD2d at 356). Angiolillo,J.P., Florio, Leventhal and Lott, JJ., concur.