State v. Mappa

• Decision Date: 16 November 2010
• Citation: 911 N.Y.S.2d 426,78 A.D.3d 926
• Parties: STATE of New York, respondent, v. Baruch MAPPA, etc., appellant, Martin Rosenberg, etc., defendant.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 426
78 A.D.3d 926

STATE of New York, respondent,
v.
Baruch MAPPA, etc., appellant,
Martin Rosenberg, etc., defendant.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 16, 2010.

911 N.Y.S.2d 426

O'Connell and Aronowitz, Albany, N.Y. (Jeffrey J. Sherrin and Daniel W. Brennan of counsel), for appellant and defendant Martin Rosenberg.

Andrew M. Cuomo, Attorney General, New York, N.Y. (Richard Dearing and Sudarsana Srinivasan of counsel), for respondent.

REINALDO E. RIVERA, J.P., JOSEPH COVELLO, RANDALL T. ENG, JOHN M. LEVENTHAL, and LEONARD B. AUSTIN, JJ.

911 N.Y.S.2d 427, 78 A.D.3d 926

In an action, inter alia, pursuant to Social Services Law § 461-f(5) to recover an operating deficit incurred by a receiver, the defendant Baruch Mappa appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated January 28, 2010, as denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(8) to dismiss the action insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendants, inter alia, moved to dismiss the action insofar as asserted against the defendant Baruch Mappa for lack of personal jurisdiction, contending that the attempt to serve him at his residence did not satisfy the "due diligence" requirement of the "nail and mail" service statute pursuant to CPLR 308(4) and that the process server was not credible. In opposition, the plaintiff presented its process server's affidavit of service made pursuant to CPLR 308(4) and evidence of Mappa's residence address. Under the circumstances of this case, the affidavit, which stated that the process server attempted to serve Mappa at his dwelling at different times and on different days, was sufficient to meet the "due diligence" requirement of CPLR 308(4) ( see JPMorgan Chase Bank, N.A. v. Szajna, 72 A.D.3d 902, 903, 898 N.Y.S.2d 524; Estate of Waterman v. Jones, 46 A.D.3d 63, 66, 843 N.Y.S.2d 462; County of Nassau v. Gallagher, 43 A.D.3d 972, 973-974, 841 N.Y.S.2d 696; Johnson v. Waters, 291 A.D.2d 481, 738 N.Y.S.2d 369). Furthermore, since there was no evidence that Mappa was employed, the plaintiff was not required to attempt to serve Mappa at his place of business ( see Johnson v. Waters, 291 A.D.2d 481, 738 N.Y.S.2d 369; Marballie v. Lefrak, 201 A.D.2d 707, 608 N.Y.S.2d 295; Matos v. Knibbs, 186 A.D.2d 725, 588 N.Y.S.2d 911;

78 A.D.3d 927

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