You are here: / / AFTER BEING TOLD THE PREMISES WAS NOT DEFENDANT’S RESIDENCE, THE...
,

AFTER BEING TOLD THE PREMISES WAS NOT DEFENDANT’S RESIDENCE, THE PROCESS SERVER DID NOT EXERCISE DUE DILIGENCE TO DETERMINE WHERE DEFENDANT RESIDED BEFORE RESORTING TO NAIL-AND-MAIL SERVICE; THE DEFAULT JUDGMENT AGAINST DEFENDANT VACATED (FIRST DEPT).

The First Department determined plaintiff failed to show defendant Lopez was properly served at the traverse hearing. The default judgment against Lopez was vacated. The decisions provides a rare opportunity to look inside a traverse hearing:

During the traverse hearing, plaintiff’s process server testified that he posted the summons and complaint on the door of the subject premises located at 713 Prospect Avenue in the Bronx (the premises), after making four attempts to serve Lopez there. However, the process server also testified that while he was attempting to personally serve Lopez at the premises, which his employer had represented was her residence, someone at the premises told him Lopez did not live there. This testimony established that the nail-and-mail service of process on Lopez was insufficient because plaintiff’s process server did not first comply with the due diligence requirement of CPLR 308(4) … . Upon obtaining information that Lopez did not reside at the premises, due diligence required the process server to investigate her whereabouts on the date of service and whether the service address was actually her dwelling place or usual place of abode before resorting to the alternative method of serving her with the summons and complaint by nail-and-mail service … . There is no evidence that the process server did so, and the affidavit of service simply states that the process server served Lopez at her “dwelling place/usual place of abode.” Casanova v Lopez, 2024 NY Slip Op 01269, Frist Dept 3-12-24

Practice Point: Here the process server was told defendant did not reside at the premises but he did not exercise due diligence (CPLR 308(4)) to find out where defendant did reside before resorting to nail-and-mail service. The default judgment against defendant was vacated.

 

You might also like
Charging an Additional 10% Contingency Fee for the Appeal, On Top of the 33 1/3% Contingency Fee for the Trial, for a Total Contingency Fee of 43 1/3 %, Was Proper—Motion Court Did Not Have the Power to Alter the Fee Agreement Sua Sponte and the Motion Court No Longer Had Jurisdiction Over the Case When It Made the Alteration
Denial of For Cause Juror Challenge Required Reversal
INSURER OF NEW YORK DRIVER INVOLVED IN AN ACCIDENT WHILE DRIVING A U-HAUL VEHICLE IN NORTH CAROLINA DID NOT HAVE SUFFICIENT CONTACTS WITH NORTH CAROLINA TO WARRANT THE IMPOSITION OF LONG-ARM JURISDICTION IN A NORTH CAROLINA ACTION, THE NEW YORK ACTION SEEKING DOMESTICATION OF A NORTH CAROLINA DEFAULT JUDGMENT SHOULD HAVE BEEN DISMISSED (FIRST DEPT).
PLAINTIFF INJURED BY A PORTION OF A ROOF WHICH FELL ON HIM UNEXPECTEDLY WHEN ANOTHER PORTION OF THE ROOF WAS BEING DEMOLISHED, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED, PROPERTY MANAGER COULD BE LIABLE AS AGENT OF OWNER.
The Fact that Plaintiff’s Testimony Was the Only Evidence of the Defect Which Caused Her to Fall (a Hole in a Worn Rubber Mat) Did Not Render the Evidence Insufficient to Support the Plaintiff’s Verdict
DEFENDANTS-ATTORNEYS WAIVED A DEFENSE WITHOUT THEIR CLIENTS’ CONSENT; THE LEGAL MALPRACTICE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT). ​
Injury While Lowering a Heavy Tank Entitled Plaintiff to Summary Judgment on His Labor Law 240 (1) Claim—Party’s Cross Motion Should Not Have Been Denied for Failure to Attach Pleadings—the Pleadings Had Been Provided to the Court by Other Parties
SIGNED WRITTEN WAIVER OF APPEAL DID NOT REMEDY THE INADEQUATE ORAL COLLOQUY.

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

THE EVIDENCE WAS SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF... PLAINTIFF ALLEGED CONSTRUCTION WORK ON DEFENDANT’S PROPERTY CAUSED WATER...