Cancilla v. Vukosa

112 A.D.3d 662, 976 N.Y.S.2d 413

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 2013
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiff Anthony Cancilla appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated January 23, 2013, as granted the defendants’ cross motion to vacate a default judgment of the same

court entered March 14, 2012, which was in his favor and against them in the principal sum of $175,000, and the plaintiff Phyllis Cancilla appeals from the same order.

Ordered that the appeal by the plaintiff Phyllis Cancilla is dismissed as abandoned, without costs or disbursements, for failure to perfect the same in accordance with the rules of this Court (see 22 NYCRR 670.8 [c], [e]); and it is further,

Ordered that the order is affirmed insofar as appealed from by the plaintiff Anthony Cancilla, without costs or disbursements.

The summons and complaint were served upon the defendants by “nail and mail” service (see CPLR 308 [4]). However, as the Supreme Court correctly determined, this service was ineffective as the plaintiffs failed to exercise the requisite due diligence in first attempting to serve the defendants pursuant to CPLR 308 (1) or (2) (see Moran v Harting, 212 AD2d 517, 518 [1995]; Walker v Manning, 209 AD2d 691, 692 [1994]; McNeely v Harrison, 208 AD2d 909, 910 [1994]).

Accordingly, the defendants’ cross motion to vacate the default judgment against them was properly granted. Skelos, J.E, Dickerson, Lott and Austin, JJ., concur. [Prior Case History: 38 Misc 3d 1217.]