Summary
Holding that the plaintiff failed to demonstrate service pursuant to CPLR Section 308 where "the process server never told the person who purportedly refused to open the door that he was there to serve legal papers."
Summary of this case from Tooker v. GuerreraOpinion
November 29, 1993
Appeal from the Supreme Court, Kings County (Held, J.).
Ordered that the order is affirmed, with costs.
We agree with the court's conclusion that the plaintiff's process server failed, as a matter of law, to exercise due diligence in attempting to effectuate personal service upon the defendant (see, CPLR 308; Pizzolo v Monaco, 186 A.D.2d 727). Two of the three attempts to effectuate personal service at the defendant's residence occurred on weekdays during normal business hours. Although the defendant's place of business was readily ascertainable from the complaint itself, no effort was made to serve him, or a person of suitable age and discretion, at that location (cf., Matos v Knibbs, 186 A.D.2d 725).
The plaintiff's further contention that personal service was made upon a person of suitable age and discretion at the defendant's residence, in accordance with CPLR 308 (2), is raised for the first time here. In any event, the contention is without merit, because the process server never told the person who purportedly refused to open the door that he was there to serve legal papers (see, Bossuk v Steinberg, 58 N.Y.2d 916; Spector v Berman, 119 A.D.2d 565).
We have considered the plaintiff's remaining contentions and find them to be without merit. Thompson, J.P., Sullivan, Rosenblatt and Ritter, JJ., concur.