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THE PROCESS SERVER DID NOT EXERCISE DUE DILIGENCE IN LOCATING THE DEFENDANT BEFORE RESORTING TO “NAIL AND MAIL” SERVICE OF PROCESS; COMPLAINT DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint should have been dismissed because plaintiff did not demonstrate the process server exercised diligence because resorting to “nail and mail” service:

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” … . “For the purpose of satisfying the ‘due diligence’ requirement of CPLR 308(4), it must be shown that the process server made genuine inquiries about the defendant’s whereabouts and place of employment” … .

Here, the plaintiff failed to demonstrate that the process server acted with due diligence before relying on affix and mail service pursuant to CPLR 308(4) … . The process server averred that he made two attempts to personally serve the defendant at his home before affixing the summons and complaint to the door of the defendant’s home. There was no evidence that the process server made any genuine inquiries about the defendant’s whereabouts and place of employment, which was known to the plaintiff. Niebling v Pioreck, 2023 NY Slip Op 06526, Second Dept 12-20-23

Practice Point: A process server’s failure to exercise due diligence  in trying to locate a defendant before resorting to “nail and mail” service, including making inquiries about defendant’s whereabouts and place of employment, will result in dismissal of the complaint.

 

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