Opinion
2018–00166 Index No. 505028/13
03-27-2019
Antoinette COLEY, appellant, v. Alexander GONZALEZ, et al., respondents.
Goldstein & Handwerker (Jason Levine, New York, NY, of counsel), for appellant. Bruce Montague, Bayside, N.Y. (Craig I. Gardy of counsel), for respondents.
Goldstein & Handwerker (Jason Levine, New York, NY, of counsel), for appellant.
Bruce Montague, Bayside, N.Y. (Craig I. Gardy of counsel), for respondents.
ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, SYLVIA O. HINDS–RADIX, BETSY BARROS, JJ.
DECISION & ORDER
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action against the defendants to recover damages for personal injuries. The defendants did not interpose answers to the complaint, and the plaintiff's motion for leave to enter a default judgment was granted. After an inquest, the plaintiff was awarded a judgment entered July 25, 2016. Thereafter, the defendants moved, inter alia, pursuant to CPLR 5015(a)(4), among other things, to vacate the default judgment and thereupon, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction. The Supreme Court, inter alia, granted that branch of the defendants' motion. The plaintiff appeals, and we affirm.
Resorting to the "affix and mail" method of personal service pursuant to CPLR 308(4) is only proper where the alternate methods of personal service provided for in CPLR 308(1) or (2) cannot be made with "due diligence" ( CPLR 308[4] ). "The requirement of due diligence must be strictly observed because ‘there is a reduced likelihood that a defendant will actually receive the summons when it is served pursuant to CPLR 308(4) ’ " ( Serraro v. Staropoli, 94 A.D.3d 1083, 1084, 943 N.Y.S.2d 201, quoting Kaszovitz v. Weiszman, 110 A.D.2d 117, 120, 493 N.Y.S.2d 335 ; see McSorley v. Spear, 50 A.D.3d 652, 653–654, 854 N.Y.S.2d 759 ). "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 A.D.3d at 653, 854 N.Y.S.2d 759 ; see Serraro v. Staropoli, 94 A.D.3d at 1084, 943 N.Y.S.2d 201 ; Estate of Waterman v. Jones, 46 A.D.3d 63, 66, 843 N.Y.S.2d 462 ).
Here, the process server's prior attempts at personal delivery at the defendants' residence occurred on weekdays during hours when it reasonably could have been expected that the defendants were either working or in transit from work (see Serraro v. Staropoli, 94 A.D.3d at 1084, 943 N.Y.S.2d 201 ; McSorley v. Spear, 50 A.D.3d at 653–654, 854 N.Y.S.2d 759 ). Moreover, there is no evidence that the process server made any genuine inquiries about the defendants' whereabouts and place of employment (see Serraro v. Staropoli, 94 A.D.3d at 1085, 943 N.Y.S.2d 201 ; McSorley v. Spear, 50 A.D.3d at 654, 854 N.Y.S.2d 759 ; Estate of Waterman v. Jones, 46 A.D.3d at 66, 843 N.Y.S.2d 462 ). Under these circumstances, the plaintiff failed to establish due diligence in attempting to effectuate service pursuant to CPLR 308(1) or (2) before resorting to the "affix and mail" method pursuant to CPLR 308(4).
Accordingly, we agree with the Supreme Court's determination, inter alia, to grant that branch of the defendants' motion which was to vacate the default judgment, and thereupon, to dismiss the complaint (see 2004 McDonald Ave. Corp. v. KGYM Holdings Group, Inc., 165 A.D.3d 614, 616, 85 N.Y.S.3d 485 ).
SCHEINKMAN, P.J., RIVERA, HINDS–RADIX and BARROS, JJ., concur.