Smith v. Wilson
| Decision Date | 07 May 1987 |
| Citation | 130 A.D.2d 821,515 N.Y.S.2d 146 |
| Parties | Earl SMITH et al., Respondents, v. Marie E. WILSON et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Roberts J. Krzys, Amsterdam, for appellants.
Carter, Conboy, Bardwell, Case & Blackmore (Diane Mayberger, of counsel), Albany, for respondents.
Before KANE, J.P., and MAIN, CASEY, MIKOLL and HARVEY, JJ.
KANE, Justice Presiding.
Appeal from an order of the County Court of Fulton County (Lomanto, J.), entered June 20, 1986, which denied defendants' motion to vacate a default judgment entered against them.
In late 1983, plaintiffs commenced an action against defendants, Marie E. Wilson and Richard W. Mosher, seeking recovery for property damage occurring to their vehicle as a result of an automobile accident on September 17, 1983 in the Town of Johnstown, Fulton County. Recovery was sought against Wilson as owner and against Mosher as operator of the vehicle that hit plaintiffs' vehicle. Both defendants were served by substituted service pursuant to CPLR 308(4). Upon defendants' failure to appear or answer, plaintiffs moved on April 27, 1984 for a default judgment. By order dated July 16, 1984, County Court granted plaintiffs' motion. Thereafter, an inquest was held and damages were assessed at $2,652.50. Subsequently, by motion dated April 17, 1986, defendants moved to vacate the default judgment pursuant to CPLR 317, 5015(a)(3) and (4). County Court denied defendants' motion and this appeal ensued.
CPLR 308(4) provides that if personal service of the summons upon the defendant cannot be accomplished under CPLR 308(1) or (2) with "due diligence", then service may be effected by:
* * * affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by mailing the summons to such person at his last known residence * * *.
The issue presented here is whether the process server, John Orloff, exercised due diligence in attempting to serve defendants personally prior to resorting to substituted service under CPLR 308(4).
The pertinent facts are not in dispute and are as follows. Orloff attempted to serve Wilson personally at her residence on three separate occasions. Those were on Tuesday, December 20, 1983 at 3:00 P.M., Wednesday, December 28, 1983 at 9:00 A.M., and Friday, January 6, 1984 at 8:00 P.M. Upon being unable to serve Wilson personally on this last occasion, Orloff utilized substituted service. As to Mosher, Orloff also attempted to serve him personally at his residence on three separate occasions. Those were on Thursday, November 17, 1983 at 9:30 A.M., Friday, November 25, 1983 at 7:15 P.M., and Tuesday, November 29, 1983 at 3:20 P.M. Upon being unable to serve Mosher personally on this last occasion, Orloff utilized substituted service.
This court has previously observed that:
Because there is a reduced likelihood that a defendant will actually receive the summons when it is served under CPLR 308 (subd. 4), the requirement of "due diligence" is to be stringently observed * * * (PacAmOr Bearings v. Foley, 92 AD2d 959 [citation omitted] ).
(See also, Kaszovitz v. Weiszman, 110 A.D.2d 117, 120, 493 N.Y.S.2d 335.) Moreover, as noted in Barnes v. City of New York, 70 A.D.2d 580, 416 N.Y.S.2d 52, affd. 51 N.Y.2d 906, 434 N.Y.S.2d 991, 415 N.E.2d 979, " 'the due diligence requirement refers to the quality of the efforts made to effect personal service, and certainly not to their quantity or frequency' ". Finally, we note that it is plaintiffs who bear the burden of establishing that personal jurisdiction over defendants was obtained (see, Bernardo v. Barrett, 87 A.D.2d 832, 833, 449 N.Y.S.2d 272, affd. 57 N.Y.2d 1006, 457 N.Y.S.2d 479, 443 N.E.2d 953).
The fact that the instant case presents a close question on the issue of due diligence was...
To continue reading
Request your trial
-
Zwerling v. Zwerling
...v. Keller, 133 A.D.2d 63, 64-65, 518 N.Y.S.2d 409; see, DeMartino v. Rivera, 148 A.D.2d 568, 569, 539 N.Y.S.2d 38; Smith v. Wilson, 130 A.D.2d 821, 822, 515 N.Y.S.2d 146.) Thus, at issue here is the propriety and sufficiency of service, not in terms of in rem jurisdiction to adjudicate the ......
-
Greene Major Holdings, LLC v. Trailside at Hunter, LLC
...1069, 1070–1071, 826 N.Y.S.2d 493 [2006], lv. dismissed 8 N.Y.3d 958, 836 N.Y.S.2d 537, 868 N.E.2d 218 [2007] ; Smith v. Wilson, 130 A.D.2d 821, 821, 515 N.Y.S.2d 146 [1987] ). While the precise manner in which due diligence is to be accomplished is "not rigidly prescribed" (State of N.Y. H......
-
Huang ex rel. Situated v. Airmedia Grp. Inc.
...substitute service has not conducted "due diligence" and therefore cannot avail himself of the "nail and mail" method. Smith v. Wilson, 130 A.D.2d 821, 822 (3d Dep't 1987); PacAmOr Bearings, Inc. v. Foley, 92 A.D.2d 959, 960 (3d Dep't 1983); Siegel, N.Y.Prac. § 74, at 80). See Indiana Tr. R......
-
State Higher Educ. Services Corp. v. Cacia
...must be strictly observed, and further noted that the burden of proving due diligence rests upon the plaintiff (see, Smith v. Wilson, 130 A.D.2d 821, 822, 515 N.Y.S.2d 146; see also, Wood v. Balick, 197 A.D.2d 438, 603 N.Y.S.2d 1; PacAmOr Bearings v. Foley, 92 A.D.2d 959, 460 N.Y.S.2d 662).......