Miske v. Maher

Appellate Division of the Supreme Court of New York

Miske v. Maher

156 A.D.2d 986, 549 N.Y.S.2d 279, 1989 N.Y. App. Div. LEXIS 16171

Appellate Division of the Supreme Court of the State of New York·Decided December 20, 1989·Published·Cited by 7 cases

Opinion

Order unanimously reversed on the law without costs, defendant’s motion granted and complaint dismissed. Memorandum: In this dental malpractice action, defendant appeals from an order dismissing his affirmative defense of lack of jurisdiction. He contends that the action was not properly instituted because, in the circumstances presented, the process server was not authorized to use "nail and mail” service pursuant to CPLR 308 (4). We agree.

"Nail and mail” service pursuant to CPLR 308 (4) may be made only when service under CPLR 308 (1) and (2) cannot be made with due diligence (CPLR 308 [4]; see also, McLaughlin, Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C308:4, 1990 Supp Pamph). Under CPLR 308 (2), personal service may be made by delivering the summons "to a person of suitable age and discretion at the actual place of business * * * of the person to be served” and by satisfying the mailing requirements of the subdivision. Here, accepting the affidavit and testimony of the process server as true, she had several opportunities to serve a person of "suitable age and discretion” at defendant’s offices, and failed to do so. Whether defendant’s employees agreed or refused to accept service is irrelevant because the delivery requirement may be met by leaving the summons in the general vicinity of a person who resists service (see, Bossuk v Steinberg, 58 NY2d 916, 918). Since service under subdivision (2) could have been made with due diligence, substituted service under subdivision (4) was not authorized (see, Matter of Galuski v Tutunjian, 133 AD2d 480, Iv denied 70 NY2d 606; Rossetti v DeLaGarza, 117 AD2d 793; Weinberg v Hillbrae Bldrs., 58 AD2d 546; Levin v McGovern, 53 AD2d 1042). Accordingly, jurisdiction was not obtained over defendant and the action must be dismissed. (Appeal from order of Supreme Court, Erie County, Gossel, J. —personal jurisdiction.) Present — Dillon, P. J., Callahan, Den-man, Balio and Lawton, JJ.

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Order unanimously reversed on the law without costs, defendant’s motion granted and complaint dismissed. Memorandum: In this dental malpractice action, defendant appeals from an order dismissing his affirmative defense of lack of jurisdiction. He contends that the action was not properly instituted because, in the circumstances presented, the process server was not authorized to use "nail and mail” service pursuant to CPLR 308 (4). We agree.

"Nail and mail” service pursuant to CPLR 308 (4) may be made only when service under CPLR 308 (1) and (2) cannot be made with due diligence (CPLR 308 [4]; see also, McLaughlin, Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C308:4, 1990 Supp Pamph). Under CPLR 308 (2), personal service may be made by delivering the summons "to a person of suitable age and discretion at the actual place of business * * * of the person to be served” and by satisfying the mailing requirements of the subdivision. Here, accepting the affidavit and testimony of the process server as true, she had several opportunities to serve a person of "suitable age and discretion” at defendant’s offices, and failed to do so. Whether defendant’s employees agreed or refused to accept service is irrelevant because the delivery requirement may be met by leaving the summons in the general vicinity of a person who resists service (see, Bossuk v Steinberg, 58 NY2d 916, 918). Since service under subdivision (2) could have been made with due diligence, substituted service under subdivision (4) was not authorized (see, Matter of Galuski v Tutunjian, 133 AD2d 480, Iv denied 70 NY2d 606; Rossetti v DeLaGarza, 117 AD2d 793; Weinberg v Hillbrae Bldrs., 58 AD2d 546; Levin v McGovern, 53 AD2d 1042). Accordingly, jurisdiction was not obtained over defendant and the action must be dismissed. (Appeal from order of Supreme Court, Erie County, Gossel, J. —personal jurisdiction.) Present — Dillon, P. J., Callahan, Den-man, Balio and Lawton, JJ.

Miske v. Maher, 156 A.D.2d 986, 549 N.Y.S.2d 279, 1989 N.Y. App. Div. LEXIS 16171 (N.Y. Ct. App. 1989).

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