Hochhauser v. Bungeroth

• Decision Date: 14 January 1992
• Citation: 578 N.Y.S.2d 170,179 A.D.2d 431
• Parties: David HOCHHAUSER, Plaintiff-Respondent, v. Harold A. BUNGEROTH, etc., Defendants-Appellants, and Morkuno Corporation, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 170

578 N.Y.S.2d 170

179 A.D.2d 431

David HOCHHAUSER, Plaintiff-Respondent, v. Harold A. BUNGEROTH, etc., Defendants-Appellants, and Morkuno Corporation, Defendant.

Supreme Court, Appellate Division, First Department.

Jan. 14, 1992.

Before MILONAS, J.P., and ROSENBERGER, KUPFERMAN, ROSS and ASCH, JJ.

MEMORANDUM DECISION.

Order/Judgment (one paper), of the Supreme Court, New York County (Edward J. Greenfield, J.), entered June 20, 1991, which, inter alia, granted plaintiff's cross-motion to confirm the judicial hearing officer's finding, dated January 29, 1991, that plaintiff had obtained personal jurisdiction over the individual defendant, is unanimously affirmed, without costs.

No rigid rule has been prescribed for determining whether "due diligence" has been exercised in attempting to effect service so as to permit the use of substituted service pursuant to CPLR 308, subd. 4 (Barnes v. City of New York, 51 N.Y.2d 906, 907, 434 N.Y.S.2d 991, 415 N.E.2d 979). The three attempts to serve defendant at his home made during various hours of the day were sufficient to establish "due diligence" so as to permit the use of substituted service (Id.; see Moss v. Corwin, 154 A.D.2d 443, 444, 546 N.Y.S.2d 15). Further, we note defendant failed to preserve this issue for our review (Recovery Consultants, Inc., v. Shih-Hsieh, 141 A.D.2d 272, 534 N.Y.S.2d 374).

There is no merit to defendant's claim that plaintiff failed to enter the judgment within one year after his default, requiring dismissal of the claim as abandoned, since the default did not occur upon date of service, but, at the minimum, 30 days thereafter, pursuant to CPLR 308, subd. 4, and 320 subd. a (Insurance Co. of North America v. Reifler, 45 A.D.2d 488, 359 N.Y.S.2d 820).