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PLAINTIFF DID NOT DEMONSTRATE DILIGENT EFFORTS TO SERVE DEFENDANT BEFORE USING THE AFFIX AND MAIL PROCEDURE, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to dismiss the complaint for failure to obtain personal jurisdiction should have been granted. Plaintiff used the affix and mail procedure and did not demonstrate that diligent efforts were made to serve by other means:

Affix and mail service pursuant to CPLR 308(4) is only valid where service under CPLR 308(1) by personal delivery or CPLR 308(2) by delivery to a person of suitable age and discretion “cannot 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'”… . Whether due diligence has been satisfied must be “determined on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but on their quality” … . Specifically, “it must be shown that the process server made genuine inquiries about the defendant’s whereabouts and place of employment” … .

Here, the submissions in support of the plaintiff’s motion contained numerous inconsistent dates regarding when service was attempted and made upon the defendant. Even accepting the dates of attempted service claimed by the plaintiff, those attempts were “made on weekdays during hours when it reasonably could have been expected that [the defendant] was either working or in transit to work”… . Moreover, there is no indication that the process server made any attempt to locate the defendant’s place of employment so he could attempt to effectuate service there … . Under these circumstances, the plaintiff failed to establish that he exercised due diligence in attempting to effectuate service pursuant to CPLR 308(1) or (2) before resorting to service pursuant to CPLR 308(4) … . Faruk v Dawn, 2018 NY Slip Op 04307, Second Dept 6-13-18

CIVIL PROCEDURE (SERVICE OF PROCESS, PLAINTIFF DID NOT DEMONSTRATE DILIGENT EFFORTS TO SERVE DEFENDANT BEFORE USING THE AFFIX AND MAIL PROCEDURE, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SERVICE OF PROCESS (PLAINTIFF DID NOT DEMONSTRATE DILIGENT EFFORTS TO SERVE DEFENDANT BEFORE USING THE AFFIX AND MAIL PROCEDURE, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CPLR 308 (SERVICE OF PROCESS, PLAINTIFF DID NOT DEMONSTRATE DILIGENT EFFORTS TO SERVE DEFENDANT BEFORE USING THE AFFIX AND MAIL PROCEDURE, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))/AFFIX AND MAIL  (SERVICE OF PROCESS, PLAINTIFF DID NOT DEMONSTRATE DILIGENT EFFORTS TO SERVE DEFENDANT BEFORE USING THE AFFIX AND MAIL PROCEDURE, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))/JURISDICTION  (SERVICE OF PROCESS, PLAINTIFF DID NOT DEMONSTRATE DILIGENT EFFORTS TO SERVE DEFENDANT BEFORE USING THE AFFIX AND MAIL PROCEDURE, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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ALTHOUGH THE FAILURE TO FILE PROOF OF SERVICE IS NOT A JURISDICTIONAL DEFECT AND CAN BE CURED SUA SPONTE, HERE THE PLAINTIFFS DID NOT PROPERLY SEEK LEAVE TO EXCUSE THE FAILURE AND THE JUDGE DID NOT GRANT PLAINTIFFS LEAVE TO FILE A LATE PROOF OF SERVICE; THE SERVICE WHICH WAS ALLOWED TO STAND BY THE JUDGE WAS THEREFORE A NULLITY (SECOND DEPT).
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MOTION TO EXTEND THE TIME TO SERVE THE SUMMONS AND COMPLAINT PROPERLY GRANTED,... ABSENCE OF A TRANSLATOR’S AFFIDAVIT CONTRIBUTED TO DEFENDANT’S FAILURE...