You are here: / / THE FACT THAT THE HOME WAS ILLUMINATED WHEN THE PROCESS SERVER ATTEMPTED...
,

THE FACT THAT THE HOME WAS ILLUMINATED WHEN THE PROCESS SERVER ATTEMPTED SERVICE DID NOT DEMONSTRATE DEFENDANT WAS EVADING SERVICE; THE PROCESS SERVER DID NOT ATTEMPT SERVICE AT DEFENDANT’S PLACE OF EMPLOYMENT; THE “NAIL AND MAIL” SERVICE WAS INVALID (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined the “nail and mail” service of process was invalid because the process server’s affidavit did not demonstrate “due diligence” in attempting other methods of personal service:

“Service of process must be made in strict compliance with [the] statutory ‘methods for effecting personal service upon a natural person’ pursuant to CPLR 308” … . Here, the plaintiff purportedly served the defendant by the “affix and mail” method pursuant to CPLR 308(4). Service pursuant to CPLR 308(4) may be used only where service pursuant to CPLR 308(1) or (2) cannot be made with “due diligence” … . “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” … .

Here, … the process server made prior attempts at personal delivery of the summons and complaint at the defendant’s residence at different times of the day between Thursday, December 21, 2017, and Friday, December 29, 2017. Although one of those times was on December 23, 2017, a Saturday, the attempts at service occurred at the height of the holiday season, when the defendant may have had reasons not to be home … . The process server noted that holiday lights were on in the windows of the residence on December 23, 2017, and that both floors of the residence were illuminated on December 26, 2017. Nevertheless, considering the holiday season, the process server’s observations were not a sufficient basis to believe that the defendant was evading service. Moreover, the process server stated that he was “unable” to speak to a neighbor regarding the defendant’s whereabouts.

In addition, in the year prior to the commencement of this action, the defendant was granted a loan modification, and as part of his application for a loan modification, the defendant was required to and did, in fact, disclose his employer and address of employment to the plaintiff. No attempts were made to serve the defendant at his place of employment. Bank of Am., N.A. v Fischer, 2023 NY Slip Op 05112, Second Dept 10-11-23

Practice Point: Here the process server’s affidavit did not demonstrate “due diligence” in attempting service at defendant’s home and there was no attempt to serve defendant at his place of employment. The “nail and mail” service was deemed invalid.

 

You might also like
DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO MAKE A MOTION FOR A DOWNWARD DEPARTURE IN THIS SORA RISK-LEVEL ASSESSMENT PROCEEDING (SECOND DEPT).
Criteria for Respondeat Superior (Scope of Employment) Liability Succinctly Explained
IN THIS DIVORCE ACTION, HUSBAND WAS NOT ENTITLED TO CREDIT FOR MORTGAGE PAYMENTS MADE BEFORE THE TERMINATION OF THE MARRIAGE WAS CONTEMPLATED (SECOND DEPT).
PLAINTIFF WAS NOT BARRED FROM SEEKING RENT OVERCHARGES BASED UPON A 1986 RENT REDUCTION ORDER (SECOND DEPT).
REMOVING PORTABLE LIGHTING EQUIPMENT IS NOT ‘ALTERING’ A STRUCTURE WITHIN THE MEANING OF LABOR LAW 240(1), DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
ALTHOUGH THE FIRST FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, DEFENDANT WAS NOT RESPONSIBLE FOR THE ACCRUAL OF INTEREST DURING THE FOUR YEARS UNTIL THE FORECLOSURE ACTION WAS REFILED, DEFENDANT’S MOTION TO AMEND THE ANSWER TO ADD THE DEFENSE OF LACK OF STANDING SHOULD HAVE BEEN GRANTED, NO PREJUDICE (SECOND DEPT).
PLAINTIFF BANK IN THIS FORECLOSURE PROCEEDING SHOULD HAVE BEEN GRANTED AN EXTENSION OF TIME TO EFFECT SERVICE FOR GOOD CAUSE SHOWN AND IN THE INTEREST OF JUSTICE (SECOND DEPT).
Res Ipsa Loquitur Is Rarely a Basis for Summary Judgment/Questions of Fact About Defendant’s Control of the Instrumentality Causing Injury Precluded Summary Judgment.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

IN THIS REAR-END COLLISION CASE, THE DRIVER OF THE REAR VEHICLE ALLEGED THE... DEFENDANT’S WAIVER OF APPEAL WAS INVALID; HER SENTENCE WAS FURTHER REDUCED...