Albert Wagner & Son, Inc. v. Schreiber

Appellate Division of the Supreme Court of New York

Albert Wagner & Son, Inc. v. Schreiber

210 A.D.2d 143, 621 N.Y.S.2d 15, 1994 N.Y. App. Div. LEXIS 12998

Appellate Division of the Supreme Court of the State of New York·Decided December 20, 1994·Published·Cited by 4 cases

Opinion

—Order, Supreme Court, New York County (Burton S. Sherman, J.), entered September 2, 1993, which, inter alia, granted plaintiffs motion to confirm the Special Referee’s report sustaining service of process, unanimously affirmed, with costs.

We agree with the Special Referee that the process server’s three unsuccessful attempts to gain access to defendant’s apartment building, including a visit at 7:00 p.m. when a working person would normally be home, constituted due diligence warranting substituted service pursuant to CPLR 308 (4). After ascertaining that defendant did in fact live in the premises, it was also proper for the process server to affix a copy of the summons and complaint to the interior door of the building’s foyer, this being the location where the process server’s progress was arrested and thus the “outer bounds” of defendant’s actual dwelling place (duPont, Glore Forgan & Co. v Chen, 41 NY2d 794, 797). Concur—Sullivan, J. P., Wallach, Ross, Rubin and Williams, JJ.

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—Order, Supreme Court, New York County (Burton S. Sherman, J.), entered September 2, 1993, which, inter alia, granted plaintiffs motion to confirm the Special Referee’s report sustaining service of process, unanimously affirmed, with costs.

We agree with the Special Referee that the process server’s three unsuccessful attempts to gain access to defendant’s apartment building, including a visit at 7:00 p.m. when a working person would normally be home, constituted due diligence warranting substituted service pursuant to CPLR 308 (4). After ascertaining that defendant did in fact live in the premises, it was also proper for the process server to affix a copy of the summons and complaint to the interior door of the building’s foyer, this being the location where the process server’s progress was arrested and thus the “outer bounds” of defendant’s actual dwelling place (duPont, Glore Forgan & Co. v Chen, 41 NY2d 794, 797). Concur—Sullivan, J. P., Wallach, Ross, Rubin and Williams, JJ.

Albert Wagner & Son, Inc. v. Schreiber, 210 A.D.2d 143, 621 N.Y.S.2d 15, 1994 N.Y. App. Div. LEXIS 12998 (N.Y. Ct. App. 1994).

Pincite

210 A.D.2d 143 (Albert Wagner & Son, Inc. v. Schreiber) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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