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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.

 

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