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Plaintiff Could Not Demonstrate Valid “Nail and Mail” Service

The Second Department affirmed the trial court’s determination that plaintiff was unable to demonstrate the defendant had been validly served using the “nail and mail” method:

…[T]he Supreme Court properly granted that branch of the plaintiff’s motion which was to dismiss the complaint pursuant to CPLR. Where service is effected pursuant to CPLR 308(4), the so-called “nail and mail” method, the plaintiff must demonstrate that service pursuant to CPLR 308(1) or (2) (personal service or residence service) could not be made with ” due diligence'” … .This requirement must be ” strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received'” … .

Here, the plaintiff produced the process server’s affidavit, which satisfied its prima facie burden regarding service. However, in her responsive affidavit, [defendant] rebutted that showing by stating specifically that (1) she was never personally served in this action, (2) she had never resided at the address where the process server attempted personal service and eventually affixed the papers, and (3) the summons and complaint were never affixed to the door of the subject premises where she had lived for more than 20 years. This showing was sufficient to warrant a hearing … .\At the hearing, the plaintiff failed to demonstrate that its process server made a genuine effort to determine [defendant’s] correct address or that he made “quality” efforts to serve her with process … . Aurora Loan Services, LLC v Gaines, et al, 2013 NY Slip Op 02034, 2011-04002, Index No 20180/08, 2nd Dept. 3-27-13

 

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