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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 20, 1994

StatusPublished

Cited by4 cases

This text of 210 A.D.2d 143 (Albert Wagner & Son, Inc. v. Schreiber) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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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).

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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.

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Bluebook (online)

210 A.D.2d 143, 621 N.Y.S.2d 15, 1994 N.Y. App. Div. LEXIS 12998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albert-wagner-son-inc-v-schreiber-nyappdiv-1994.

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