Opinion
October 27, 1995
Appeal from the Supreme Court, Westchester County (Rosato, J.).
Ordered that the cross appeal is dismissed, without costs or disbursements, as the cross appellants are not aggrieved by the portion of the judgment cross-appealed from (see, CPLR 5511); and it is further,
Ordered that the judgment is affirmed insofar as appealed from, without costs or disbursements.
The order to show cause which brought on this proceeding directed "personal service" of a copy of the order to show cause and supporting papers. The Supreme Court Justice who signed the order to show cause crossed out the provision which would have permitted service by mail. The petitioner claimed that Leslie N. Simon was served by affixing the papers to the door of his residence and mailing the papers to his home and business addresses pursuant to CPLR 308 (4). The method of service provided for in the order to show cause is jurisdictional in nature and must be strictly complied with (see, Matter of O'Daniel v. Hayduk, 59 A.D.2d 706, 707, affd 42 N.Y.2d 1062; Matter of Bruno v. Ackerson, 39 N.Y.2d 718, affg 51 A.D.2d 1051; Matter of Raphael v. Montgomery County Bd. of Elections, 175 A.D.2d 965; Matter of Sahler v. Callahan, 92 A.D.2d 976, 977).
The affidavit of the petitioner's process server was insufficient, as a matter of law, to establish that she exercised due diligence in attempting service by personal delivery of the order to show cause to Simon pursuant to CPLR 308 (1) or by delivery and mail pursuant to CPLR 308 (2). The two attempts at such service were insufficient to warrant resort to affix and mail service under CPLR 308 (4) (see, Barnes v. City of New York, 70 A.D.2d 580, affd 51 N.Y.2d 906; Pizzolo v. Monaco, 186 A.D.2d 727; Moss v. Corwin, 154 A.D.2d 443). Because the petitioner failed to properly serve Simon, a "necessary party" (Matter of Sahler v. Callahan, supra, at 977), pursuant to the order to show cause, the Supreme Court was without jurisdiction to entertain this proceeding. Accordingly, the proceeding was properly dismissed. Sullivan, J.P., Thompson, Hart and Goldstein, JJ., concur.