You are here: / / THE PROCESS SERVER DID NOT EXERCISE DUE DILIGENCE IN LOCATING THE DEFENDANT...
,

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.

 

You might also like
MOTION TO RENEW SHOULD NOT HAVE BEEN DENIED AS A MOTION TO REARGUE, NEW EVIDENCE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WAS PRESENTED.
Plaintiff Was Unable to Pinpoint the Cause of Her Fall—“Feigned Issue” Raised In an Affidavit Could Not Stave Off Summary Judgment
THE PROCESS SERVER DID NOT EXERCISE DUE DILIGENCE IN ATTEMPTING TO SERVE DEFENDANT BEFORE RESORTING TO NAIL AND MAIL; THE PROCESS SERVER WAS AWARE OF DEFENDANT’S PLACE OF EMPLOYMENT BUT DID NOT ATTEMPT TO SERVE DEFENDANT THERE (SECOND DEPT). ​
ADMINISTRATION FOR CHILDREN’S SERVICES PROPERLY HELD IN CIVIL CONTEMPT FOR FAILING TO COMPLY WITH AN ORDER TO PLACE THE CHILD IN TRADITIONAL FOSTER CARE (SECOND DEPT).
“BEST EVIDENCE RULE” CRITERIA EXPLAINED; NOT MET HERE.
THE COUNTY’S FAILURE TO RESPOND TO PETITIONER’S FOIL REQUEST WITHIN FIVE DAYS IS A DENIAL; THE COUNTY’S FAILURE TO NOTIFY PETITIONER OF THE AVAILABILITY OF AN ADMINISTRATIVE REVIEW OF THE DENIAL EXCUSED PETITIONER’S FAILURE TO SEEK ADMINSTRATIVE REVIEW; PETITIONER’S ARTICLE 78 ACTION SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (SECOND DEPT).
Defendant’s Flight Did Not Justify Police Pursuit and Entry Into Defendant’s Apartment—Evidence Properly Suppressed
Failure to Hold a Hearing on Mother’s Petition for Custody and Failure to Inform Father of Right to Counsel Required Reversal of Custody Determination

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

QUESTION OF FACT WHETHER DEFENDANT DRIVER, WHO ALLEGEDLY MADE A TURN IN FRONT... RESTORATION OF AN ACTION TO THE ACTIVE CALENDAR AFTER FAILURE TO FILE A NOTE...