Wood v. Balick

Appellate Division of the Supreme Court of New York

Wood v. Balick

197 A.D.2d 438, 603 N.Y.S.2d 1, 1993 N.Y. App. Div. LEXIS 9777

Appellate Division of the Supreme Court of the State of New York·Decided October 19, 1993·Published·Cited by 3 cases

Opinion

—Order, Supreme Court, New York County (Stanley L. Sklar, J.), entered on or about April 2, 1992, which granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8), unanimously affirmed, without costs.

While CPLR 308 (4) permits the use of "nail and mail” substituted service when a party is unable to effect personal service under CPLR 308 (1) or (2), a "due diligence” attempt at personal service is first required. Plaintiffs’ process server attempted service on two consecutive days—a Wednesday at 5:10 p.m. and a Thursday at 8:55 a.m.—at defendant’s residence. These attempts did not constitute due diligence, made [439]*439as they were within minutes of normal business hours at times when it was likely defendant was in transit to or from work (Magalios v Benjamin, 160 AD2d 773), and also because no attempt to serve defendant by personal delivery was made at his known place of business (Pizzolo v Monaco, 186 AD2d 727). Concur—Rosenberger, J. P., Ellerin, Ross and Asch, JJ.

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—Order, Supreme Court, New York County (Stanley L. Sklar, J.), entered on or about April 2, 1992, which granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8), unanimously affirmed, without costs.

While CPLR 308 (4) permits the use of "nail and mail” substituted service when a party is unable to effect personal service under CPLR 308 (1) or (2), a "due diligence” attempt at personal service is first required. Plaintiffs’ process server attempted service on two consecutive days—a Wednesday at 5:10 p.m. and a Thursday at 8:55 a.m.—at defendant’s residence. These attempts did not constitute due diligence, made [439]*439as they were within minutes of normal business hours at times when it was likely defendant was in transit to or from work (Magalios v Benjamin, 160 AD2d 773), and also because no attempt to serve defendant by personal delivery was made at his known place of business (Pizzolo v Monaco, 186 AD2d 727). Concur—Rosenberger, J. P., Ellerin, Ross and Asch, JJ.

Wood v. Balick, 197 A.D.2d 438, 603 N.Y.S.2d 1, 1993 N.Y. App. Div. LEXIS 9777 (N.Y. Ct. App. 1993).

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Opinion

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