PLAINTIFF DID NOT DEMONSTRATE THE PROCESS SERVER ACTED WITH “DUE DILIGENCE” BEFORE RESORTING TO “NAIL AND MAIL” SERVICE; THE COURT THEREFORE DID NOT ACQUIRE PERSONAL JURISDICTION OVER DEFENDANT; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff did not demonstrate the process server acted with “due diligence” before resorting to “nail and mail” service:

“Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308” … . “Service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with due diligence” … . “To satisfy the ‘due diligence’ requirement, the plaintiff must demonstrate that the process server made genuine inquiries about the defendant’s whereabouts and place of employment” … . “The failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void” … .

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 resorted to service pursuant to CPLR 308(4) after only twice attempting personal service at the defendant’s residence during weekday hours when it could reasonably have been expected that the defendant was either working or in transit to or from work … . Moreover, there was no evidence that the process server made any genuine inquiries about the defendant’s whereabouts and place of business … . Citibank, N.A. v Sagastume, 2026 NY Slip Op 05765, Second Dept 10-7-26

Practice Point: Consult this decision for a clear explanation of the criteria for the exercise of due diligence by a process server. Here the process server made no inquiries about the defendant’s whereabouts or place of business before resorting to “nail and mail.”