You are here: / / HERE THE FIRST “NAIL AND MAIL” AFFIDAVIT BY THE PROCESS SERVER...
,

HERE THE FIRST “NAIL AND MAIL” AFFIDAVIT BY THE PROCESS SERVER FAILED TO DEMONSTRATE THE REQUIRED MAILING; A SECOND AFFIDAVIT WAS SUBMITTED WHICH DESCRIBED THE MAILING; THE SECOND AFFIDAVIT DID NOT CURE THE DEFECT IN THE ORIGINAL AFFIDAVIT; THEREFORE A HEARING ON THE VALIDITY OF THE SERVICE OF PROCESS WAS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a hearing was required on whether defendant was properly served by “nail and mail.” The first affidavit from the process server did not mention the required mailing. A second affidavit which described the mailing was subsequently submitted. The second affidavit did not cure the flaw in the original affidavit:

… Supreme Court erred in determining the defendant’s cross-motion, inter alia, to vacate the judgment and to dismiss the complaint for lack of personal jurisdiction without first conducting a hearing to determine the validity of service of process. The original affidavit of service sworn to on July 26, 2018, failed to aver that the process server mailed the summons and complaint as required by CPLR 308(4). The new affidavit of service sworn to on November 23, 2021, submitted by the plaintiff in opposition to the defendant’s cross-motion, could not be used to cure the apparent defect in the original affidavit of service … . Further, the defendant raised an issue of fact as to whether the summons and complaint were affixed to the door of the defendant’s dwelling place or usual place of abode … . Miller v Fuentes, 2025 NY Slip Op 03564, Second Dept 6-11-25

Practice Point: If the original affidavit by the process server does not describe the mailing requirement for “nail and mail” service, that flaw is not cured by submitting a second affidavit which describes the mailing. The flaw in the original affidavit mandates a hearing on the validity of the service of process.

 

You might also like
THE ACTION, WHICH STEMMED FROM PLAINTIFF’S BEING DROPPED IN THE DELIVERY ROOM IMMEDIATELY AFTER BIRTH, SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS THEREFORE TIME-BARRED (SECOND DEPT).
QUESTION OF FACT WHETHER PROPERTY OWNER EXACERBATED OR CREATED THE DANGEROUS CONDITION IN THIS SNOW-RELATED SLIP AND FALL CASE 2ND DEPT.
JUDGE SHOULD NOT HAVE DENIED, SUA SPONTE, PLAINTIFF’S MOTION FOR A JUDGMENT OF FORECLOSURE ON A GROUND NOT RAISED BY ANY PARTY (SECOND DEPT).
DEFENDANT HAS THE RIGHT TO BE PERSONALLY PRESENT AT RESENTENCING ABSENT WAIVER, RESENTENCE REVERSED (SECOND DEPT).
DEFENDANT WHICH BUILT THE SWIMMING POOL, DEFENDANT WHICH INSTALLED THE POOL LINER, AND DEFENDANT OWNERS OF THE POOL, WERE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS SWIMMING POOL INJURY CASE, PLAINTIFF WAS INJURED WHEN HE DOVE IN AND STRUCK HIS CHIN IN A SHALLOW AREA (SECOND DEPT).
QUESTION OF FACT WHETHER FLOODING, AS OPPOSED TO WIND, CAUSED THE PROPERTY DAMAGE PRECLUDED SUMMARY JUDGMENT IN FAVOR OF THE INSURER BASED UPON POLICY EXCLUSIONS (SECOND DEPT).
ALTHOUGH THE ORAL CONTRACT CALLED FOR THE MATURATION OF A LOAN AFTER 15 YEARS, THE STATUTE OF FRAUDS DID NOT APPLY BECAUSE IT WAS POSSIBLE TO PERFORM THE CONTRACT WITHIN A YEAR.
CLAIMANT STRUCK A DOWNED LIGHT POLE WHICH HAD ROTTED BELOW GROUND, STATE DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION.

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

DEFENDANT HOSPITAL DISCHARGED A PATIENT WITH A HISTORY OF SCHIZOPHRENIA BUT... THE SANCTION THAT PETITIONER BE CONFINED TO A SPECIAL HOUSING UNIT (SHU), NOW...