| Serraro v Staropoli |
| 2012 NY Slip Op 03164 [94 AD3d 1083] |
| April 24, 2012 |
| Appellate Division, Second Department |
| David Serraro et al., Respondents, v Nicholas Staropoli etal., Appellants. |
—[*1] Robert I. Gruber, New York, N.Y., for respondents.
In an action to recover damages for personal injuries, the defendants appeal (1), as limited bytheir brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.),dated November 22, 2010, as granted those branches of their motion which were, in effect, tovacate a default judgment of the same court entered March 24, 2008, upon their failure to appearor answer the complaint, in favor of the plaintiffs and against them in the principal sum of$57,140.68, and to dismiss the complaint for lack of personal jurisdiction only to the extent ofdirecting a hearing to determine the validity of service of process upon them, (2) from an order ofthe same court (Friedman, J.), dated April 15, 2011, which, after the hearing, and upon a decisiondated March 15, 2011, denied those branches of the motion, and (3) from an order of the samecourt (Lefkowitz, J.), dated July 27, 2011, which denied their motion, in effect, for leave toreargue and resettle the order dated April 15, 2011, and to vacate the underlying decision datedMarch 15, 2011.
Ordered that the appeals from the orders dated November 22, 2010, and July 27, 2011, aredismissed; and it is further,
Ordered that the order dated April 15, 2011, is reversed, on the law, and those branches ofthe defendants' motion which were, in effect, to vacate a default judgment entered March 24,2008, upon their failure to appear or answer the complaint, in favor of the plaintiffs and againstthem in the principal sum of $57,140.68, and to dismiss the complaint for lack of personaljurisdiction are granted; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The appeal from the order dated November 22, 2010, must be dismissed, as no appeal lies asof right from an order which directs a hearing to aid in the disposition of a motion (see Aguilera v Pistilli Constr. & Dev.Corp., 63 AD3d 765, 766 [2009]; Akerman v Akerman, 53 AD3d 633 [2008]; D'Agnese vSpinelli, 308 AD2d 561, 562 [2003]), and we decline to grant leave to appeal.[*2]
The Supreme Court erred in finding that service ofprocess upon the defendants was valid. Pursuant to CPLR 308 (4), service of process may bemade "by affixing the summons to the door of either the actual place of business, dwelling placeor usual place of abode" only where the alternate methods of personal service provided for inCPLR 308 (1) or (2) "cannot be made with due diligence" (CPLR 308 [4]). The requirement ofdue diligence must be strictly observed because "there is a reduced likelihood that a defendantwill actually receive the summons when it is served pursuant to CPLR 308 (4)" (Kaszovitz vWeiszman, 110 AD2d 117, 120 [1985]; see McSorley v Spear, 50 AD3d 652, 653-654 [2008]; County of Nassau v Letosky, 34 AD3d414, 415 [2006]). "What constitutes due diligence is determined on a case-by-case basis,focusing not on the quantity of the attempts at personal delivery, but on their quality"(McSorley v Spear, 50 AD3d at 653, citing Estate of Waterman v Jones, 46 AD3d 63, 66 [2007]).
Here, the process server attempted to personally deliver a summons and complaint to eachdefendant at their shared home on four different weekdays: March 6, 2007, at 8:00 a.m., March21, 2007, at 6:50 p.m., April 4, 2007, at 5:10 p.m., and April 5, 2007, at 4:05 p.m. After all fourattempts proved unsuccessful, the process server affixed a copy of each summons and complaintto the front door of the defendants' shared home and mailed a copy to that same address(see CPLR 308 [4]).
"For the purpose of satisfying the 'due diligence' requirement of CPLR 308 (4), it must beshown that the process server made genuine inquiries about the defendant's whereabouts andplace of employment" (Estate ofWaterman v Jones, 46 AD3d 63, 66 [2007]; see McSorley v Spear, 50 AD3d at654; cf. Krisilas v Mount SinaiHosp., 63 AD3d 887, 889 [2009]). Here, the process server did not make any inquiriesabout the defendants' work schedules or their respective business addresses. He simply reviewedthe residential address on each summons and complaint, and made four attempts at personalservice at that address. The plaintiffs knew that the defendant Nicholas Staropoli owned andoperated a service station less than a mile from the parties' neighboring homes, but inexplicably,the process server was unaware of this and he never attempted to personally deliver a summonsand complaint at that location. Furthermore, each of the process server's attempts at personalservice "[was] made on weekdays during hours when it reasonably could have been expected that[the defendants were] either working or in transit to work" (County of Nassau v Letosky,34 AD3d at 415; see McSorley v Spear, 50 AD3d at 653-654; Estate of Waterman vJones, 46 AD3d at 66; Gurevitch v Goodman, 269 AD2d 355, 355-356 [2000]).Under these circumstances, the plaintiffs failed to establish that they exercised "due diligence" inattempting to effectuate service pursuant to CPLR 308 (1) or (2) before using the "nail and mail"method pursuant to CPLR 308 (4) (McSorley v Spear, 50 AD3d at 653-654; seeEstate of Waterman v Jones, 46 AD3d at 66; County of Nassau v Letosky, 34 AD3dat 415; Sanders v Elie, 29 AD3d773, 774 [2006]; O'Connell vPost, 27 AD3d 630, 631 [2006]; Gurevitch v Goodman, 269 AD2d at 355-356;Moran v Harting, 212 AD2d 517, 518 [1995]; cf. Krisilas v Mount Sinai Hosp.,63 AD3d at 889; Koyenov v Twin-DTransp., Inc., 33 AD3d 967, 969 [2006]; Johnson v Waters, 291 AD2d 481[2002]). Accordingly, those branches of the defendants' motion which were, in effect, to vacate adefault judgment upon their failure to appear or answer the complaint, in favor of the plaintiffsand against them in the principal sum of $57,140.68, and to dismiss the complaint for lack ofpersonal jurisdiction should have been granted.
In light of the foregoing, the appeal from so much of the order dated July 27, 2011, as deniedthe branches of the defendants' motion which were to resettle the order dated April 15, 2011, andto set aside the underlying decision dated March 15, 2011, must be dismissed as academic.Moreover, the appeal from so much of that same order as denied that branch of the defendants'motion which was for leave to reargue must be dismissed, as no appeal lies from an orderdenying reargument (see Brown Bark II,L.P. v Weiss & Mahoney, Inc., 90 AD3d 963 [2011]; DeFrancesco v Iraci, 240AD2d 533, 534 [1997]; Green Point Sav. Bank v Dockery, 238 AD2d 310 [1997];Paulus v Kuchler, 214 AD2d 608, 609 [1995]). Rivera, J.P., Florio, Chambers andCohen, JJ., concur.