From Casetext: Smarter Legal Research

Pizzolo v. Monaco

Appellate Division of the Supreme Court of New York, Second Department
Oct 19, 1992
186 A.D.2d 727 (N.Y. App. Div. 1992)

Summary

finding no due diligence where plaintiff made no attempts to serve defendant at place of his employment, which was "easily ascertainable from the complaint itself"

Summary of this case from Goetz v. Synthesys Technologies, Inc.

Opinion

October 19, 1992

Appeal from the Supreme Court, Queens County (Corrado, J.).


Ordered that the order is affirmed, with costs.

We agree with the court's finding that the plaintiffs' process server did not exercise due diligence in attempting to effectuate personal service upon the late Dr. Robert Monaco. The three attempts to make service of the summons and complaint upon Dr. Monaco at his residence on different days of the week and at different times including the morning, afternoon and evening, were insufficient to constitute due diligence under the circumstances of this case (see, Barnes v City of New York, 70 A.D.2d 580, affd 51 N.Y.2d 906; Magalios v Benjamin, 160 A.D.2d 773; Moss v Corwin, 154 A.D.2d 443; cf., Matos v Knibbs, 186 A.D.2d 725 [decided herewith]). Although the complaint itself revealed that Dr. Monaco was a physician, no attempt was made to serve him at his place of employment (see, Moss v Corwin, supra; DeShong v Marks, 144 A.D.2d 623; Smith v Wilson, 130 A.D.2d 821). Dr. Monaco's association with the defendant Mary Immaculate Hospital was easily ascertainable from the complaint itself, and personal service could have been made there upon him or upon a person of suitable age and discretion (CPLR 308; Miske v Maher, 156 A.D.2d 986). Thus, since due diligence was not exercised in attempting personal delivery of the summons and complaint under CPLR 308 (1) or (2), substitute "nail and mail" service under CPLR 308 (4) was not authorized. On this record we find no basis to disturb the court's findings or its assessment of the credibility of the witnesses who testified at the hearing.

We have reviewed the plaintiffs' remaining contentions and find them to be without merit. Bracken, J.P., Rosenblatt, Miller and O'Brien, JJ., concur.


Summaries of

Pizzolo v. Monaco

Appellate Division of the Supreme Court of New York, Second Department
Oct 19, 1992
186 A.D.2d 727 (N.Y. App. Div. 1992)

finding no due diligence where plaintiff made no attempts to serve defendant at place of his employment, which was "easily ascertainable from the complaint itself"

Summary of this case from Goetz v. Synthesys Technologies, Inc.

In Pizzolo v. Monaco, 186 AD2d 727, 588 NYS2d 910 [2nd Dept., 1992], a medical malpractice case, the Court found that the Plaintiffs had not exercised due diligence when they failed to attempt to serve the doctor at the hospital, when his employment there was evident from the complaint itself.

Summary of this case from Greenblum v. Quality Estates, LLC
Case details for

Pizzolo v. Monaco

Case Details

Full title:RONALD PIZZOLO et al., Appellants, v. ROSE MONACO, as Executrix of ROBERT…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 19, 1992

Citations

186 A.D.2d 727 (N.Y. App. Div. 1992)
588 N.Y.S.2d 910

Citing Cases

Kopec v. GMG Construction Corp.

In addition, in considering whether a plaintiff exercised due diligence, New York courts have considered,…

JP Morgan Chase Bank, N.A. v. HB Design, Inc.

The fourth consideration has been afforded particular weight in the Second Department, some cases holding…