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.