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Nail and Mail failed to meet due diligence requirement

Tsunis & Gasparis LLP v. Dunne, 235-2006
Decided: December 28, 2006
Supreme Court

Tsunis & Gasparis, LLP

Attorneys for Plaintiff

Denetra Dunne

Defendant Pro Se on Motion

Justice Mayer

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the plaintiff’s motion for a default judgment against the defendant is considered under CPLR §3215 and CPLR 308 and is hereby denied; and it is further

ORDERED that counsel for the movant shall serve a copy of this Order upon the defendant at the defendant’s last known address within ten (10) days from the date of this Order pursuant to CPLR §2103(b)(1),(2) or (3) and shall thereafter file the affidavit(s) of service with the Suffolk County Clerk.

This action arose from the defendant’s alleged non-payment for legal services rendered by the plaintiff on behalf of the defendant in connection with the defendant’s matrimonial action. The plaintiff now moves for a default judgment against the defendant pursuant to CPLR 3215(a), which states, in relevant part: “When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him.”

A copy of the plaintiff’s summons and complaint was purportedly served upon the defendant by the so-called “nail and mail” method pursuant to CPLR 308(4). According to the moving papers, the plaintiff’s process server attempted to deliver the summons and complaint to the defendant at 48 Bay Avenue, Ronkonkoma, NY 11779 on Tuesday, January 24, 2006 at 6:51 a.m., Wednesday, January 25, 2006 at 7:59 p.m., and on Friday, February 10, 2006 at 12:51 p.m. According to the affidavit of service, the process server then affixed a copy of the summons and complaint to the door at the 48 Bay Avenue address on February 10, 2006, and mailed a copy to the same address on February 18, 2006. While the affidavit of service indicates that the process server confirmed with a neighbor, Ms. Roma, that 48 Bay Avenue was the defendant’s address, there is no indication as to when such purported confirmation was actually made or what time frame the confirmation pertained to.

On March 29, 2006, pursuant to the requirements of CPLR 3215(g)(3), the plaintiff mailed an additional copy of the summons and complaint to the plaintiff at the 48 Bay Avenue address, the same address at which the purported “nail and mail” was made. This copy, however, was returned to the plaintiff by the post office, indicating that the defendant had moved and left no forwarding address. After receiving the returned copy of the summons and complaint, the plaintiff mailed another copy to the defendant on April 11, 2006 via regular mail to 122 Clarendon Road, Ronkonkoma, NY 11779, the address listed in the parties’ August 20, 2002 retainer agreement. This copy was not returned by the post office.

The “nail and mail” method of service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with due diligence (Lemberger v. Khan, 18 AD3d 447, 794 NYS2d 416 [2d Dept 2005]). The due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received (O’Connell v. Post, 27 AD3d 630, 811 NYS2d 441 [2d Dept 2006]). The 122 Clarendon Road address was the defendant’s address stated on the parties’ retainer agreement, and mail sent to the defendant at that address was not returned by the post office. Although that address was clearly known by the plaintiff to be the defendant’s last known address, neither the plaintiff nor its process server ever attempted to effectuate personal service upon the defendant at that address.

Based on the facts presented, the Court concludes that the plaintiff has failed to establish personal jurisdiction over the defendant, in that the plaintiff failed to meet the “due diligence” requirement for “nail and mail” service under CPLR 308(4). The return of mail sent by the plaintiff to the 48 Bay Avenue address, and the non-return of mail sent to the 122 Clarendon Road address was a clear indication to the plaintiff that the defendant did not reside at 48 Bay Avenue. Accordingly, and since there is no indication that the process server made any attempt to locate the defendant’s business address or to effectuate personal service thereat, “due diligence” under CPLR 308(4) has not been shown (Sanders v. Elie, 29 AD3d 773, 816 NYS2d 509 [2D Dept 2006]; Earle v. Valente, 302 AD2d 353, 754 NYS2d 364 [2d Dept 2003]; Annis v. Long, 298 AD2d 340, 751 NYS2d 370 [2d Dept 2002]).

The facts of this case present clear examples of why the “due diligence” requirement of CPLR 308(4) should be strictly observed, given the reduced likelihood that a summons served pursuant to CPLR 308(4) will be received (see, Scott v. Knoblock, 204 AD2d 299, 611 NYS2d 265 [2d Dept 1994]; Kaszovitz v. Weiszman, 110 AD2d 117, 120, 493 N.Y.S.2d 335 [2d Dept 1985]). Since the plaintiff has failed to meet the “due diligence” requirement for so-called “nail and mail” service under CPLR 308(4), jurisdiction over the defendant has not been established and the plaintiff’s motion must be denied (Sanders v. Elie, supra; Earle v. Valente, supra; Annis v. Long, supra).

This constitutes the Decision and Order of the Court.