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“Due Diligence” Demonstrated—“Nail and Mail” Service Appropriate

In a foreclosure action, the Second Department determined plaintiff bank demonstrated “due diligence” in attempting personal service on the homeowner, such that the “nail and mail” service was appropriate:

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 (see CPLR 308[4]…). The term “due diligence,” which is not defined by statute, has been interpreted and applied on a case-by-case basis … . Indeed, the Court of Appeals has stated that “in determining the question of whether due diligence has been exercised, no rigid rule could properly be prescribed” … . As a general matter, the “due diligence” requirement may be met with “a few visits on different occasions and at different times to the defendant’s residence or place of business when the defendant could reasonably be expected to be found at such location at those times” … .

Here, the affidavit of the process server demonstrated that three visits were made to the homeowner’s residence on three different occasions and at different times, when the homeowner could reasonably have been expected to be found at that location … . The process server also described in detail his unsuccessful attempt to obtain an employment address for the homeowner … . Contrary to the homeowner’s contention, under these circumstances, the due diligence requirement was satisfied… . Wells Fargo Bank, NA v Besemer, 2015 NY Slip Op 06806, 2nd Dept 9-16-15

 

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