Barnes v. City of New York
| Decision Date | 07 May 1979 |
| Citation | 416 N.Y.S.2d 52,70 A.D.2d 580 |
| Parties | Alfred BARNES, et al., Appellants, v. The CITY OF NEW YORK et al., Defendants, Arthur Schwartz et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Rose & Koerner, Brooklyn (Ronald J. Koerner, Brooklyn, of counsel), for appellants.
Lester, Schwab, Katz & Dwyer, New York City (Steven B. Prystowsky, New York City, of counsel), for respondents Arthur and Loretta Schwartz.
Before MOLLEN, P. J., and HOPKINS, GULOTTA, SHAPIRO and MARTUSCELLO, JJ.
MEMORANDUM BY THE COURT.
In a consolidated negligence action to recover damages for personal injuries, plaintiffs appeal from an order of the Supreme Court, Kings County, dated October 20, 1977, which, after a hearing, Inter alia, granted defendants Schwartz' motion to dismiss the complaint against them.
Order affirmed, with costs.
Defendants Schwartz moved to dismiss the complaint, Inter alia, for lack of in personam jurisdiction over them (see CPLR 3211, subd. (a), par. 8). The facts are not in dispute. A process server attempted to serve a summons on plaintiffs' behalf upon the Schwartzes at their home on September 5, 1973 at 10:00 A. M., September 6, 1973 at 5:10 P. M., September 7, 1973 at 1:00 P. M. and September 11, 1973 at 8:20 A. M. (Wednesday, Thursday, Friday and Tuesday, respectively); on each occasion he rang the bell, but found no one at home. He inquired of a neighbor and was told that the Schwartzes lived next door but that she could provide him with no information as to their whereabouts. He did not, however, attempt to ascertain the Schwartzes "actual place of business" (see CPLR 308, subd. 2). Thereafter, in accordance with the procedure prescribed in CPLR 308 (subd. 4) for effecting substituted personal service (i. e., the mailing and nailing provision), the process server affixed two copies of the summons to the door of the Schwartz home and mailed a copy to said home. Defendant Arthur Schwartz testified that they neither received nor saw a copy of the summons. At the time involved both Mr. and Mrs. Schwartz were employed.
Special Term found service to be ineffective. We agree. Before a process server may avail himself of the form of service that was utilized in this case, he must exercise due diligence to effect personal service pursuant to CPLR 308 (subds. 1 or 2) (see CPLR 308, subd. 4; Jones v. King, 24 A.D.2d 430, 260 N.Y.S.2d 666). We think that the process server's unsuccessful attempts to find the Schwartzes at home when he sought to serve them during normal working hours should have indicated to him that they were working people. Yet, there was no attempt to effect personal service in accordance with CPLR 308 (subds. 1 or 2), either at a time when one might have reasonably expected such individuals to be at home, prior to leaving for work or after working hours, or at their place of business. Accordingly, we agree with Special Term's determination that the facts adduced do not establish that the process server exercised such due diligence as the statute requires to permit the use of substituted service. As Special Term observed, "(t)he due diligence requirement refers to the quality of the efforts made to effect personal service, and certainly not to their quantity or frequency."
MARTUSCELLO, J., dissents and votes to reverse the order and to deny defendants Schwartz' motion to dismiss the complaint, with the following memorandum, in which HOPKINS, J., concurs:
This is a personal injury action in which damages are sought, Inter alia, for the loss of an eye by one of the plaintiffs resulting from an automobile accident which occurred on September 19, 1970. According to the affidavit of service timely substituted service was effected on September 11, 1973 in accordance with CPLR 308 (subd. 4). It was not until March 17, 1977, more than three years after defendants Schwartz had appeared and answered (asserting, Inter alia, lack of jurisdiction) that they moved to dismiss the action on the grounds of lack of personal jurisdiction and the bar of the Statute of Limitations. Special Term, Sua sponte, treated the motion as one for summary judgment. The court asserted that "the only alleged facts in this case are those described in the plaintiff's (Sic ) copy of the process server's affidavit of service, which facts are virtually undisputed by the moving defendants." Special Term concluded that "the issue must be decided as a matter of Law ". The court accepted the factual statements of four attempts of personal service on September 5, 6, 7 and 11,...
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