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Defense of Lack of Personal Jurisdiction Is Not Waived by Making a Motion to Dismiss on that Ground/Process Server’s Testimony About Attempts to Locate Defendant Lacked Credibility

The Second Department determined the defendant did not waive the defense of lack of personal jurisdiction by submitting a motion to dismiss on that ground.  The court further determined that Supreme Court properly dismissed the complaint based upon the process server’s lack of credibility about his attempts to locate the defendant:

A defendant may waive the issue of lack of personal jurisdiction by appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss … . A defendant may also waive lack of personal jurisdiction by entering into a stipulation of settlement of the action … . Additionally, a defendant may waive lack of personal jurisdiction by making payments pursuant to a judgment or wage garnishment for a substantial period of time …  However, where the defendant’s only participation in the action is the submission of a motion to vacate a default judgment for lack of personal jurisdiction, the defense of lack of personal jurisdiction is not waived … . * * *

Service of process pursuant to the affix-and-mail provisions of CPLR 308(4) is only permitted where service by personal delivery under CPLR 308(1) or by delivery to a person of suitable age and discretion and a subsequent mailing pursuant to CPLR 308(2) “cannot be made with due diligence” (CPLR 308[4]). ” 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'” … . The process server’s testimony that he inquired as to the defendant’s whereabouts from a neighbor was not credible, since he was unable to provide any description of the neighbor—even a description of the neighbor’s sex. The affidavit of service referred to the “person spoken to,” but provided no further description, although spaces were provided to insert the person’s sex, skin color, hair color, approximate age, height, and weight.

The determination of the hearing court as to the credibility of the process server should not be disturbed since the hearing court had the advantage of seeing and listening to that witness. Cadlerock Joint Venture LP v Kierstedt, 2014 NY Slip Op 05147, 2nd Dept 7-9-14

 

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