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

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

DecidedOctober 19, 1993

StatusPublished

Cited by3 cases

This text of 197 A.D.2d 438 (Wood v. Balick) 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

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).

Pincite

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.

Free access — add to your briefcase to read the full text and ask questions with AI

—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.

Cite This Page — Counsel Stack

Bluebook (online)

197 A.D.2d 438, 603 N.Y.S.2d 1, 1993 N.Y. App. Div. LEXIS 9777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wood-v-balick-nyappdiv-1993.

Opinion

Related

Cite This Page — Counsel Stack