Finkelstein Newman Ferrara LLP v. Manning

• Decision Date: 13 April 2012
• Docket Number: No. 570303/11.,570303/11.
• Citation: 950 N.Y.S.2d 722
• Parties: FINKELSTEIN NEWMAN FERRARA LLP f/k/a/Finkelstein Newman LLP, Plaintiff–Appellant, v. Leo MANNING, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

950 N.Y.S.2d 722

FINKELSTEIN NEWMAN FERRARA LLP f/k/a/Finkelstein Newman LLP, Plaintiff–Appellant,

v.Leo MANNING, Defendant–Respondent.

No. 570303/11.

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

April 13, 2012.

OPINION TEXT STARTS HEREPlaintiff appeals from an order of the Civil Court of the City of New York, New York County (Kibbie F. Payne, J.), dated October 8, 2010, which, after a hearing, sustained the traverse and dismissed the complaint.

Present: SHULMAN, J.P., HUNTER, JR., TORRES, JJ.

PER CURIAM.

Order (Kibbie F. Payne, J.), dated October 8, 2010, reversed, with $10 costs, traverse denied, complaint reinstated, and matter remanded for further proceedings.

Finding plaintiff's process server to be a “candid [and] forthright” witness, the traverse court expressly determined that the process server made three weekday attempts to serve defendant at his residential apartment building over a five-day span, including a visit at 7:30 P.M. when, we note, a working person might generally be expected to be home. Based upon the traverse court's unchallenged findings as to the timing and chronology of the service attempts, we conclude that the process server exercised due diligence in attempting to serve defendant personally with the summons and complaint before resorting to nail-and-mail service pursuant to CPLR 308(4) ( see Ayala v. Bassett, 57 AD3d 387 [2008];Albert Wagner & Son v. Schreiber, 210 A.D.2d 143 [1994];Lara v. 1010 E. Tremont Realty Corp., 205 A.D.2d 468 [1994];see also State of N.Y. Higher Educ. Servs. Corp. v. Sparozic, 35 A.D.2d 1069 [2006],lv dismissed8 NY3d 958 [2007];cf. Spath v. Zack, 36 AD3d 410, 412–413 [2007] )). This is so even if, as the traverse court apparently found, defendant did not attempt to evade service during the process server's third and final visit. Nor was it necessary that the process server, before resorting to nail-and-mail, attempt to serve defendant at his place of business ( see Farias v. Simon, 73 AD3d 569 [2010];cf. Pizzolo v. Monaco, 186 A.D.2d 727 [1992] ).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.