Lopez v. Menendez, 21881/2005
Decided: July 31, 2006
Defendant Joan Lopez’s motion to dismiss plaintiff’s complaint pursuant to CPLR 3211 (a) (8) is denied. This is an action for personal injuries arising out of a motor vehicle accident.
Plaintiff initially commenced this action by filing the summons and complaint on September 27, 2005. Issue was joined by defendant Lopez on February 14, 2006 in which defendant asserts that this Court lacks personal jurisdiction due to improper service1. A review of the affidavit of service reveals that the plaintiff’s process server averred that he made four attempts to personally serve the defendant Lopez at her home in the Bronx, New York, on various days and at various times during the second, third and fourth week of October 20052. When these efforts proved unsuccessful, he utilized nail and mail service pursuant to CPLR 308(4). Defendant now moves to dismiss this action claiming that defendant resided in the same apartment as the plaintiff and as a result the efforts made by the process server were not diligent.
It is well settled that nail and mail service pursuant to CPLR 308(4) may only be used where service under CPLR 308(1) and (2) cannot be made with “due diligence”. The due diligence requirement of CPLR 308(4) should be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received ( see, Walker v. Manning, 209 A.D.2d 691, 619 N.Y.S.2d 137; McNeely v. Harrison, 208 A.D.2d 909, 617 N.Y.S.2d 879; Scott v. Knoblock, 204 A.D.2d 299, 611 N.Y.S.2d 265; Kaszovitz v. Weiszman, 110 A.D.2d 117, 493 N.Y.S.2d 335). The affidavit of the plaintiff’s process server, and the papers submitted in opposition to the defendant’s motion, indicated that the three attempts made by the plaintiff’s process server to personally serve her at her residence satisfied the due diligence requirement ( see, Johnson v. Waters, 291 A.D.2d 481, 738 N.Y.S.2d 369; Rodriguez v. Khamis, 201 A.D.2d 715, 608 N.Y.S.2d 486; Matos v. Knibbs, 186 A.D.2d 725, 588 N.Y.S.2d 911). In determining if the “due diligence” requirements of CPLR §308(4) are met, the Court of Appeals, in Barnes v. City of New York, 51 N.Y.2d 906 (1980), observed, at 907, that “in determining the question of whether due diligence has been exercised, no rigid rule could properly be prescribed.” A case very similar to the instant action, Matos v. Knibbs, 186 A.D.2d 725, the process server made three attempts to serve a defendant on various days and various times and the Court found this sufficient to meet the “due diligence” requirement in that the three attempts to make service of the summons and complaint upon the defendant at his residence at different times and on different days, including a Saturday, were sufficient to constitute due diligence (see, Matos v. Knibbs, 186 A.D.2d 725, 588 N.Y.S.2d 911; see also, Johnson v. Waters, 291 A.D.2d 481, 738 N.Y.S.2d 369). Here, one of these attempts on defendant Lopez was made on a Saturday, another during normal working hours, and the last on a Tuesday evening. Accordingly, the process server properly resorted to service of process pursuant to CPLR 308(4). Defendant’s argument that the plaintiff and defendant, who apparently are not related, resided in the same household does not impute a higher burden on the plaintiff to locate the defendant. Thus, the substituted service on defendant Lopez on October 26, 2005, complied with the statutory requirements of CPLR §308(4) for “due diligence.” The plaintiff properly served defendant Lopez within 120 days of the filing of the summons and complaint, pursuant to CPLR §306(b). Therefore, in the instant action, the Court has personal jurisdiction of defendant Lopez.
Accordingly, the motion of defendant Lopez for an order, pursuant to CPLR Rule 3211(a)(8), dismissing the complaint against her for failure of the plaintiff to have jurisdiction over her person, is denied. This constitutes the decision and order of the Court.