Hanover New England v. MacDougall

• Decision Date: 03 March 1994
• Citation: 608 N.Y.S.2d 561,202 A.D.2d 724
• Parties: HANOVER NEW ENGLAND, as Subrogee of Robert Beauregard, Doing Business as Valley Carpet, Respondent, v. Jacqueline MacDOUGALL, Appellant, and Robert Woodcock, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 561

608 N.Y.S.2d 561

202 A.D.2d 724

HANOVER NEW ENGLAND, as Subrogee of Robert Beauregard, Doing Business as Valley Carpet, Respondent, v. Jacqueline MacDOUGALL, Appellant and Robert Woodcock, Defendant.

Supreme Court, Appellate Division Third Department.

March 3, 1994.

Robert J. Krzys, Amsterdam, for appellant.

Solomon and Solomon P.C. (Harold L. Solomon, of counsel), Albany, for respondent.

Before CARDONA, P.J., and MIKOLL, CREW and WEISS, JJ.

CREW, Justice.

Appeal from an order of the Supreme Court (White, J.), entered August 27, 1992 in Montgomery County, which, inter alia, granted plaintiff's motion to dismiss defendant Jacqueline MacDougall's first and second affirmative defenses.

Based upon our review of the record as a whole, we are unable to conclude that Supreme Court erred in finding that plaintiff satisfied the "due diligence" requirement of CPLR 308(4) and in sustaining the "nail and mail" service upon defendant Jacqueline MacDougall (hereinafter defendant). CPLR 308(4) permits such service when a party is unable to effect personal service under CPLR 308(1) or (2) (see generally, Wood v. Balick, 197 A.D.2d 438, 603 N.Y.S.2d 1). There is no rigid standard by which the due diligence requirement is measured, and whether a party has satisfied that requirement will necessarily depend upon the facts of each case (see, Bank Leumi Trust Co. of N.Y. v. Katzen, 192 A.D.2d 401, 596 N.Y.S.2d 368).

Here, the record reveals that plaintiff's process server attempted to serve defendant at her residence on Saturday, March 21, 1992 at 8:20 A.M., on Friday, March 27, 1992 at 6:40 P.M., and on Wednesday April 8, 1992 at 7:30 P.M. Additionally, the process server spoke with one of defendant's neighbors in an effort to ascertain defendant's place of employment. Under these circumstances, we are of the view that the due diligence requirement has been satisfied (see, Hochhauser v. Bungeroth, 179 A.D.2d 431, 578 N.Y.S.2d 170; cf., Matos v. Knibbs, 186 A.D.2d 725, 588 N.Y.S.2d 911). Notably, this is not an instance where service was attempted only during normal working hours (see, e.g., Serrano v. Pape, 188 A.D.2d 647, 591 N.Y.S.2d 516; Magalios v. Benjamin, 160 A.D.2d 773, 554 N.Y.S.2d 61), nor is this a situation where defendant's place of employment should have been readily apparent (compare, Pizzolo v. Monaco, 186 A.D.2d 727, 588 N.Y.S.2d 910 [defendant physician's association with hospital was apparent from the face of the complaint and service could have been attempted there] or the process server had an opportunity to serve a person of suitable age and discretion under CPLR 308(2) and failed to do so (see, e.g., Miske v. Maher, 156 A.D.2d 986, 549 N.Y.S.2d 279, lv. denied 75 N.Y.2d 708...