McSorley v. Spear
| Decision Date | 01 April 2008 |
| Docket Number | 2007-08865. |
| Citation | 2008 NY Slip Op 02976,854 N.Y.S.2d 759,50 A.D.3d 652 |
| Parties | JEROME McSORLEY, Respondent, v. KAY L. SPEAR, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is reversed, on the law, with costs, and the defendant's motion, inter alia, pursuant to CPLR 3211 (a) (8) to dismiss the complaint is granted.
According to his affidavit of service, the process server attempted to personally deliver the summons and verified complaint to the defendant at her home on Friday, January 12, 2007, at 7:52 A.M., on Monday, January 15, 2007, at 6:55 P.M., and on Tuesday, January 16, 2007, at 11:45 A.M. After all three attempts proved unsuccessful, the process server affixed a copy of the summons and verified complaint to the defendant's door and thereafter mailed a copy to her residence (see CPLR 308 [4]). The defendant moved, inter alia, pursuant to CPLR 3211 (a) (8) to dismiss the complaint for lack of personal jurisdiction, arguing that the process server did not exercise due diligence in attempting to serve her by personal delivery before resorting to service under CPLR 308 (4), so-called "nail and mail" service. Specifically, citing the affidavit of service, the defendant argued that the process server never attempted to learn her place of business and serve her there before resorting to service under CPLR 308 (4). The defendant admitted, however, that her business, the boarding of horses, was located on the same plot of land on which her home was located and two adjoining plots of land. The Supreme Court denied the defendant's motion to dismiss. We reverse.
Under the Civil Practice Law and Rules, the preferred methods of personal service on an individual are by delivering the summons to the defendant (see CPLR 308 [1]), or by delivering the summons to a person of suitable age and discretion and mailing another copy of the summons to the defendant's last known residence or actual place of business (see CPLR 308 [2]). If service cannot be effected by those methods "with due diligence," CPLR 308 (4) permits so-called "nail and mail" service, which entails affixing the summons to the door of the defendant's "actual place of business, dwelling place or usual place of abode," and by mailing the summons either to the defendant's last known residence or actual place of business (CPLR 308 [4]). This Court has repeatedly emphasized that "the due diligence requirement of CPLR 308 (4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received" (Gurevitch v Goodman, 269 AD2d 355, 355 [2000]; see County of Nassau v Letosky, 34 AD3d...
To continue reading
Request your trial
-
Aurora Loan Servs., LLC v. Gaines
...46 A.D.3d 63, 65, 843 N.Y.S.2d 462, quoting CPLR 308[4]; see Gray v. Giannikios, 90 A.D.3d at 837, 935 N.Y.S.2d 112;McSorley v. Spear, 50 A.D.3d 652, 653, 854 N.Y.S.2d 759;Harkless v. Reid, 23 A.D.3d 622, 623, 806 N.Y.S.2d 214). This requirement must be “ ‘strictly observed, given the reduc......
-
Cornhill LLC v. Sposato
...a court must "focus[ ] not on the quantity of the attempts at personal delivery, but on their quality." McSorley v. Spear, 50 A.D.3d 652, 653, 854 N.Y.S.2d 759 (2nd Dep't), lv. denied 10 N.Y.3d 715, 862 N.Y.S.2d 336, 892 N.E.2d 402 (2008). See Greene Major Holdings, LLC v. Trailside at Hunt......
-
Serraro v. Staropoli
...summons when it is served pursuant to CPLR 308(4)” ( Kaszovitz v. Weiszman, 110 A.D.2d 117, 120, 493 N.Y.S.2d 335; see McSorley v. Spear, 50 A.D.3d 652, 653–654, 854 N.Y.S.2d 759; County of Nassau v. Letosky, 34 A.D.3d 414, 415, 824 N.Y.S.2d 153). “What constitutes due diligence is determin......
-
Greene Major Holdings, LLC v. Trailside at Hunter, LLC
...of abode,’ and by mailing the summons either to the defendant's last known residence or actual place of business" (McSorley v. Spear, 50 A.D.3d 652, 653, 854 N.Y.S.2d 759 [2008], lv. denied 10 N.Y.3d 715, 862 N.Y.S.2d 336, 892 N.E.2d 402 [2008], quoting CPLR 308 [4] ; see Serraro v. Staropo......