Dime Savings Bank v. Mancini

Appellate Division of the Supreme Court of New York

Dime Savings Bank v. Mancini

184 A.D.2d 989, 585 N.Y.S.2d 603, 1992 N.Y. App. Div. LEXIS 8580

Appellate Division of the Supreme Court of the State of New York·Decided June 25, 1992·Published·Cited by 4 cases

Opinion

Appeal from an order of the Supreme Court (Bradley, J.), entered March 2, 1992 in Ulster County, which granted plaintiff’s motion for service of the summons by publication.

After diligent but unsuccessful efforts to serve defendant [990]*990Jane J. Mancini with the summons and complaint in this mortgage foreclosure action, plaintiff sought and was granted permission to serve Mancini by publication. Mancini now contends that Supreme Court erred in allowing service by publication. The record reveals that, in addition to having several process servers visit Mancini’s purported residence at different times and dates, to serve her, all of which were unsuccessful, plaintiff hired a private investigator to ascertain Mancini’s whereabouts to effectuate personal service. The affidavit of the private investigator reveals that Mancini did not physically reside at the premises where she claimed to reside. Under these circumstances, together with the fact that Mancini cannot even be located at her purported residence or anywhere else, we find that plaintiff has not only shown due diligence in its attempts to serve Mancini (see, CPLR 315; Liebeskind v Liebeskind, 86 AD2d 207, 211, affd 58 NY2d 858), but it has also shown that service by the other prescribed methods would prove to be unavailable, if not impracticable (cf., Caban v Caban, 116 AD2d 783, 784).

Mikoll, J. P., Yesawich Jr., Mercure, Crew III and Casey, JJ., concur. Ordered that the order is affirmed, with costs.

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Appeal from an order of the Supreme Court (Bradley, J.), entered March 2, 1992 in Ulster County, which granted plaintiff’s motion for service of the summons by publication.

After diligent but unsuccessful efforts to serve defendant [990]*990Jane J. Mancini with the summons and complaint in this mortgage foreclosure action, plaintiff sought and was granted permission to serve Mancini by publication. Mancini now contends that Supreme Court erred in allowing service by publication. The record reveals that, in addition to having several process servers visit Mancini’s purported residence at different times and dates, to serve her, all of which were unsuccessful, plaintiff hired a private investigator to ascertain Mancini’s whereabouts to effectuate personal service. The affidavit of the private investigator reveals that Mancini did not physically reside at the premises where she claimed to reside. Under these circumstances, together with the fact that Mancini cannot even be located at her purported residence or anywhere else, we find that plaintiff has not only shown due diligence in its attempts to serve Mancini (see, CPLR 315; Liebeskind v Liebeskind, 86 AD2d 207, 211, affd 58 NY2d 858), but it has also shown that service by the other prescribed methods would prove to be unavailable, if not impracticable (cf., Caban v Caban, 116 AD2d 783, 784).

Mikoll, J. P., Yesawich Jr., Mercure, Crew III and Casey, JJ., concur. Ordered that the order is affirmed, with costs.

Dime Savings Bank v. Mancini, 184 A.D.2d 989, 585 N.Y.S.2d 603, 1992 N.Y. App. Div. LEXIS 8580 (N.Y. Ct. App. 1992).

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