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 |
Before MILONAS, J.P., and ROSENBERGER, KUPFERMAN, ROSS and ASCH, JJ.
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).
To continue reading
Request your trial-
Sartor v. Utica Taxi Center, Inc.
... ... Hochhauser v. Bungeroth, 179 A.D.2d 431, 578 N.Y.S.2d 170 (1st Dep't 1992), it ruled that three attempts to serve defendant at home at various times when ... ...
-
Barker v. Cruz
...to nail-and-mail service, establishes prima-facie proof of proper service under the due-diligence standard. (see Hochhauser v Bungeroth, 179 A.D.2d 431, 578 N.Y.S.2d 170 [1st Dept 1992] (Three attempts to serve defendant at his home made during various hours of the day were sufficient to es......
-
Barker v. Cruz
...to nail-and-mail service, establishes prima-facie proof of proper service under the due-diligence standard. (see Hochhauser v Bungeroth, 179 A.D.2d 431, 578 N.Y.S.2d 170 [1st Dept 1992] (Three attempts to serve defendant at his home made during various hours of the day were sufficient to es......
-
Goetz v. Synthesys Technologies, Inc.
... ... requirement is measured, and whether a party has satisfied that requirement will necessarily depend upon the facts of each case."); Hochhauser v. Bungeroth, 179 A.D.2d 431, 578 N.Y.S.2d 170 (N.Y.App.Div.1992) ("No rigid rule has been prescribed for determining whether `due diligence' has ... ...