Bd. of Managers of 50 W. 127th St. Condo. v. Kidd

• Decision Date: 07 February 2019
• Docket Number: 8351N,Index 151386/15
• Citation: 94 N.Y.S.3d 27,169 A.D.3d 432
• Parties: The BOARD OF MANAGERS OF 50 WEST 127TH STREET CONDOMINIUM, Plaintiff–Respondent, v. Chekesha KIDD, Defendant–Respondent, Christiana Trust as Trustee of ALPRP Trust 4, etc., et al., Defendants. City West Capital LLC, Nonparty Appellant.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 432
94 N.Y.S.3d 27

The BOARD OF MANAGERS OF 50 WEST 127TH STREET CONDOMINIUM, Plaintiff–Respondent,
v.
Chekesha KIDD, Defendant–Respondent,

Christiana Trust as Trustee of ALPRP Trust 4, etc., et al., Defendants.

City West Capital LLC, Nonparty Appellant.

8351N
Index 151386/15

Supreme Court, Appellate Division, First Department, New York.

ENTERED: FEBRUARY 7, 2019

Dani Schwartz, New York, for appellant.

Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for The Board of Managers of 50 West 127th Street Condominium, respondent.

Kurzman Eisenberg Corbin & Lever, LLP, White Plains (John C. Re of counsel), for Chekesha Kidd, respondent.

Acosta, P.J., Gische, Kapnick, Gesmer, Singh, JJ.

169 A.D.3d 432

Supreme Court properly determined that plaintiff did not establish that personal service could not be made with due diligence by personal delivery before effecting service pursuant to CPLR 308(4). While a process server's affidavit evidencing three attempts at personal service over a period of time may satisfy the plaintiff's prima facie burden in some circumstances (see e.g. Ayala v. Bassett, 57 A.D.3d 387, 388, 870 N.Y.S.2d 261 [1st Dept. 2008] ), where, as in this case, it is evident that the defendant works during day time hours, a showing of three attempts to serve defendant at home on consecutive days, twice during working hours and once in the evening, is insufficient to demonstrate due diligence (see Barnes v. City of New York, 70 A.D.2d 580, 416 N.Y.S.2d 52 [2d Dept. 1979], affd 51 N.Y.2d 906, 907, 434 N.Y.S.2d 991, 415 N.E.2d 979 [1980] ; see also

169 A.D.3d 433

Spath v. Zack, 36 A.D.3d 410, 829 N.Y.S.2d 19 [1st Dept. 2007] ; Kaszovitz v. Weiszman, 110 A.D.2d 117, 120, 493 N.Y.S.2d 335 [2d Dept. 1985] ). Here, defendant presented evidence that plaintiff and its managing agent knew of her travel and work schedule, which required her to be in Connecticut during the week, and plaintiff did not contest that showing (see

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