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Nail and Mail | No Due Diligence

Saitta v. Dichiara, 14559-2006
Decided: January 12, 2007
Justice Peter H. Mayer

Supreme Court

David Jude Jannuzzi, Esq.

Attorney for Plaintiff

Joseph Dichiara

Defendant Pro Se

Theresa Dichiara

Defendant Pro Se

Justice Mayer

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 breach of contract action arose from a purported agreement entered into on January 17, 1989 between the parties and nonparty, Gary R. Hahn, for the purchase of a home, as tenants in common, located at 5 Seymour Lane, Hicksville, NY 11801. 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 defendants by the so-called “nail and mail”

method pursuant to CPLR 308(4). According to the moving papers, the plaintiff’s process server served a copy of the summons and complaint upon each defendant by affixing a copy to the door at the 5 Seymour Lane address on July 12, 2006. He then mailed a copy to the defendants at the same address on January 13, 2006. The “due diligence” portion of the affidavit of service indicates that prior to the “nail and mail” service, the process server only attempted to deliver the summons and complaint to the defendants on one occasion, July 7, 2006 at 8:20 p.m.

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]; 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]). Based on the facts presented, the Court concludes that the plaintiff has failed to meet the “due diligence” requirement for “nail and mail” service under CPLR 308(4). Only one prior attempt to serve a defendant, particularly where, as here, there is no indication that the process server made any attempt to locate the defendant’s business address or to effectuate personal service thereat, does not constitute “due diligence” as contemplated by CPLR 308(4) (see, 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]).

In addition to the foregoing, the moving papers fail to establish that the plaintiff provided the additional notice required under CPLR 3215(g)(3) before a default may be granted. Since the plaintiff has failed to meet the “due diligence” requirement for “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.