County of Nassau v. Gallagher
Decision Date | 18 September 2007 |
Docket Number | 2006-05191.,2007-04903. |
Citation | 43 A.D.3d 972,2007 NY Slip Op 06819,841 N.Y.S.2d 696 |
Parties | COUNTY OF NASSAU, Respondent, v. SEAMUS GALLAGHER, Appellant. |
Court | New York Supreme Court — Appellate Division |
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
Contrary to the defendant's contention, the Supreme Court properly determined that the attempts to serve the defendant at his residence satisfied the "due diligence" requirement for so-called "nail and mail" service under CPLR 308 (4) (see Johnson v Waters, 291 AD2d 481 [2002]; Matos v Knibbs, 186 AD2d 725 [1992]; Mitchell v Mendez, 107 AD2d 737, 738 [1985]). Where four attempts to serve the defendant at his residence included an attempt on a late weekday evening and an attempt on an early Saturday morning, it was not necessary that the plaintiff County of Nassau, attempt to serve the defendant at his workplace (cf. County of Nassau v Long, 35 AD3d 787, 788 [2006]; County of Nassau v Letosky, 34 AD3d 414 [2006]; County of Nassau v Yohannan, 34 AD3d 620, 621 [2006]; Earle v Valente, 302 AD2d 353, 353-354 [2003]). Accordingly, upon reargument, the Supreme Court properly, in effect, vacated its prior order granting that branch of the defendant's prior motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction,...
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