Florestal v. Coleman-Florestal

Appellate Division of the Supreme Court of New York

Florestal v. Coleman-Florestal

124 A.D.3d 578, 2 N.Y.S.3d 153

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

DecidedJanuary 14, 2015

Docket2014-03518

StatusPublished

Cited by5 cases

This text of 124 A.D.3d 578 (Florestal v. Coleman-Florestal) 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.

Bluebook

Florestal v. Coleman-Florestal, 124 A.D.3d 578, 2 N.Y.S.3d 153 (N.Y. Ct. App. 2015).

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Opinion

In an action for a divorce, the defendant appeals from an order of the Supreme Court, Westchester County (Wood, J.), *579 entered January 14, 2014, which granted the plaintiffs motion for leave to effect substituted service of the summons and complaint and, in effect, pursuant to CPLR 306-b to extend the time to effect that service.

Ordered that the order is affirmed, without costs or disbursements.

In an action for a divorce, Domestic Relations Law § 232 permits substituted service pursuant to CPLR 308 by court order upon a showing that personal delivery of the summons and complaint upon the defendant could not be effected despite efforts made with due diligence (see Domestic Relations Law § 232 [a]; Liebeskind v Liebeskind, 86 AD2d 207 [1982], affd 58 NY2d 858 [1983]; Alan D. Scheinkman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law C232:3). Here, the affidavits of the plaintiffs process server, wherein he attested that he made numerous attempts to deliver the summons and complaint to the defendant at her residence at different times on different days, including two Saturdays, a weekday evening, and a weekday morning, were sufficient to establish, prima facie, the due diligence requirement (see Wells Fargo Bank, N.A. v Cherot, 102 AD3d 768 [2013]; Lopez v DePietro, 82 AD3d 715, 716 [2011]; JPMorgan Chase Bank, N.A. v Szajna, 72 AD3d 902, 903 [2010]). The defendant’s bare and unsubstantiated claims that the plaintiffs process server did not use due diligence were insufficient to rebut the plaintiffs showing. Accordingly, the Supreme Court properly granted that branch of the plaintiff’s motion which was for leave to effect substituted service of the summons and complaint.

Furthermore, since the plaintiff demonstrated good cause, the Supreme Court properly granted that branch of the motion which was, in effect, to extend the time to serve the summons and complaint (see CPLR 306-b; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105 [2001]).

Dillon, J.P, Dickerson, Roman and Sgroi, JJ., concur.

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In an action for a divorce, the defendant appeals from an order of the Supreme Court, Westchester County (Wood, J.), *579 entered January 14, 2014, which granted the plaintiffs motion for leave to effect substituted service of the summons and complaint and, in effect, pursuant to CPLR 306-b to extend the time to effect that service.

Ordered that the order is affirmed, without costs or disbursements.

In an action for a divorce, Domestic Relations Law § 232 permits substituted service pursuant to CPLR 308 by court order upon a showing that personal delivery of the summons and complaint upon the defendant could not be effected despite efforts made with due diligence (see Domestic Relations Law § 232 [a]; Liebeskind v Liebeskind, 86 AD2d 207 [1982], affd 58 NY2d 858 [1983]; Alan D. Scheinkman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law C232:3). Here, the affidavits of the plaintiffs process server, wherein he attested that he made numerous attempts to deliver the summons and complaint to the defendant at her residence at different times on different days, including two Saturdays, a weekday evening, and a weekday morning, were sufficient to establish, prima facie, the due diligence requirement (see Wells Fargo Bank, N.A. v Cherot, 102 AD3d 768 [2013]; Lopez v DePietro, 82 AD3d 715, 716 [2011]; JPMorgan Chase Bank, N.A. v Szajna, 72 AD3d 902, 903 [2010]). The defendant’s bare and unsubstantiated claims that the plaintiffs process server did not use due diligence were insufficient to rebut the plaintiffs showing. Accordingly, the Supreme Court properly granted that branch of the plaintiff’s motion which was for leave to effect substituted service of the summons and complaint.

Furthermore, since the plaintiff demonstrated good cause, the Supreme Court properly granted that branch of the motion which was, in effect, to extend the time to serve the summons and complaint (see CPLR 306-b; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105 [2001]).

Dillon, J.P, Dickerson, Roman and Sgroi, JJ., concur.

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Bluebook (online)

124 A.D.3d 578, 2 N.Y.S.3d 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florestal-v-coleman-florestal-nyappdiv-2015.

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