| JP Morgan Chase Bank, N.A. v Baldi |
| 2015 NY Slip Op 04098 [128 AD3d 777] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| JP Morgan Chase Bank, N.A.,Respondent, v Gerald Baldi, Appellant, et al.,Defendants. |
Holly C. Meyer, Medford, N.Y., for appellant.
Bonchonsky & Zaino, LLP, Garden City, N.Y. (Leonard P. Marinello and PeterBonchonsky of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Gerald Baldi appeals, as limitedby his brief, from so much of an order of the Supreme Court, Suffolk County (Pastoressa,J.), dated May 5, 2014, as denied that branch of his motion which was pursuant to CPLR5015 (a) (4) to vacate so much of an order of the same court dated May 23, 2013, asgranted that branch of the plaintiff's motion which was for leave to enter a defaultjudgment against him.
Ordered that the order dated May 5, 2014, is affirmed insofar as appealed from, withcosts.
By order dated May 23, 2013, the Supreme Court, inter alia, granted the plaintiff inthis mortgage foreclosure action leave to enter a default judgment against the defendantGerald Baldi (hereinafter the appellant), upon the appellant's default in appearing oranswering the complaint. The appellant thereafter moved, among other things, pursuantto CPLR 5015 (a) (4) to vacate that portion of the May 23, 2013, order, contending thathe was not properly served with the complaint by affix and mail service pursuant toCPLR 308 (4). In particular, the appellant asserted that the plaintiff did not exercise duediligence in attempting to make personal service on him before resorting to affix andmail service. The Supreme Court denied the motion.
Service pursuant to CPLR 308 (4) may be used only where personal service underCPLR 308 (1) and (2) cannot be made with due diligence (see CPLR 308 [4]; Deutsche Bank Natl. Trust Co. vWhite, 110 AD3d 759, 759-760 [2013]; Estate of Waterman v Jones, 46 AD3d 63, 65 [2007]). Theterm "due diligence," which is not defined by statute, has been interpreted and applied ona case-by-case basis (see Estate of Waterman v Jones, 46 AD3d at 66).
Here, the affidavit of the process server demonstrated that three visits were made tothe appellant's residence on three different occasions and at different times, when theappellant could reasonably have been expected to be found at that location (seeDeutsche Bank Natl. Trust Co. v White, 110 AD3d at 759-760; Estate ofWaterman v Jones, 46 AD3d at 65). Further, the process server averred that heconfirmed with a neighbor that the appellant resided at the premises at which [*2]service was attempted. The process server also described indetail his unsuccessful attempt to obtain an employment address for the appellant (cf. Leviton v Unger, 56 AD3d731, 732 [2008]; County ofNassau v Long, 35 AD3d 787, 788 [2006]). Contrary to the appellant'scontention, under these circumstances, the Supreme Court properly concluded that thedue diligence requirement was satisfied (see Lemberger v Khan, 18 AD3d 447 [2005]).
Accordingly, the Supreme Court properly denied that branch of the appellant'smotion which was pursuant to CPLR 5015 (a) (4) to vacate so much of the order datedMay 23, 2013, as granted that branch of the plaintiff's motion which was for leave toenter a default judgment against him. Skelos, J.P., Chambers, Maltese and Duffy, JJ.,concur.