| Faruk v Dawn |
| 2018 NY Slip Op 04307 [162 AD3d 744] |
| June 13, 2018 |
| Appellate Division, Second Department |
[*1]
| Mohammad Omar Faruk, Respondent, v ThompsonDawn, Appellant. |
Mitchell J. Studley (Thomas Torto, New York, NY [Jason Levine], of counsel), forappellant.
Sacco & Fillas, LLP, Astoria, NY (James R. Baez of counsel), for respondent.
In an action, inter alia, to recover damages for personal injuries, the defendant appeals froman order of the Supreme Court, Kings County (Kathy J. King, J.), dated September 21, 2016. Theorder, insofar as appealed from, denied that branch of the defendant's cross motion which waspursuant to CPLR 3211 (a) (8) to dismiss the complaint for lack of personal jurisdiction.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendant's cross motion which was pursuant to CPLR 3211 (a) (8) to dismiss thecomplaint for lack of personal jurisdiction is granted.
On September 4, 2011, the plaintiff and the defendant were allegedly involved in a motorvehicle accident at the intersection of Clifton Place and Nostrand Avenue in Brooklyn. OnSeptember 3, 2014, the plaintiff commenced this action by filing a summons and verifiedcomplaint. On January 2, 2015, a process server purportedly served the defendant pursuant toCPLR 308 (4) by affixing a copy of the summons and complaint at the apartment complex wherethe defendant resided and mailing a copy to the same address. The defendant never appeared oranswered. In November 2015, the plaintiff moved pursuant to CPLR 3215 for leave to enter adefault judgment against the defendant. The defendant cross-moved, inter alia, pursuant to CPLR3211 (a) (8) to dismiss the complaint for lack of personal jurisdiction. The Supreme Court, interalia, denied that branch of the defendant's cross motion which was to dismiss the complaint. Thedefendant appeals.
Affix and mail service pursuant to CPLR 308 (4) is only valid where service under CPLR308 (1) by personal delivery or CPLR 308 (2) by delivery to a person of suitable age anddiscretion "cannot be made with due diligence" (CPLR 308 [4]; see Gray v Giannikios, 90 AD3d836, 837 [2011]; McSorley vSpear, 50 AD3d 652, 653 [2008]; Estate of Waterman v Jones, 46 AD3d 63, 65 [2007]). Thisrequirement must be " 'strictly observed, given the reduced likelihood that a summonsserved pursuant to that section will be received' " (McSorley v Spear, 50 AD3d at653, quoting Gurevitch v Goodman, 269 AD2d 355, 355 [2000]; see Estate ofWaterman v Jones, 46 AD3d at 66; County of Nassau v Letosky, 34 AD3d 414, 415 [2006]). Whetherdue diligence has been satisfied must be "determined on a case-by-case basis, focusing not on thequantity of the attempts at personal delivery, but on their [*2]quality" (McSorley v Spear, 50 AD3d at 653; see Estateof Waterman v Jones, 46 AD3d at 66). Specifically, "it must be shown that the process servermade genuine inquiries about the defendant's whereabouts and place of employment" (Estateof Waterman v Jones, 46 AD3d at 66; see Serraro v Staropoli, 94 AD3d 1083, 1085 [2012]; McSorleyv Spear, 50 AD3d at 654).
Here, the submissions in support of the plaintiff's motion contained numerous inconsistentdates regarding when service was attempted and made upon the defendant. Even accepting thedates of attempted service claimed by the plaintiff, those attempts were "made on weekdaysduring hours when it reasonably could have been expected that [the defendant] was eitherworking or in transit to work" (County of Nassau v Letosky, 34 AD3d at 415; seeSerraro v Staropoli, 94 AD3d at 1085; McSorley v Spear, 50 AD3d at 653-654;Estate of Waterman v Jones, 46 AD3d at 66; County of Nassau v Long, 35 AD3d 787, 787-788 [2006];Gurevitch v Goodman, 269 AD2d at 355-356). Moreover, there is no indication that theprocess server made any attempt to locate the defendant's place of employment so he couldattempt to effectuate service there (see Serraro v Staropoli, 94 AD3d at 1085;McSorley v Spear, 50 AD3d at 654; Estate of Waterman v Jones, 46 AD3d at 66;County of Nassau v Long, 35 AD3d at 788). Under these circumstances, the plaintifffailed to establish that he exercised due diligence in attempting to effectuate service pursuant toCPLR 308 (1) or (2) before resorting to service pursuant to CPLR 308 (4) (see Serraro vStaropoli, 94 AD3d at 1085; McSorley v Spear, 50 AD3d at 654; Estate ofWaterman v Jones, 46 AD3d at 66; County of Nassau v Long, 35 AD3d at 788;Gurevitch v Goodman, 269 AD2d at 355-356).
The parties' remaining contentions either are without merit or have been rendered academicin light of our determination.
Accordingly, the Supreme Court should have granted that branch of the defendant's crossmotion which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint for lack of personaljurisdiction. Roman, J.P., LaSalle, Connolly and Christopher, JJ., concur.