You are here: / Civil Procedure
, , ,

ALTHOUGH PLAINTIFF’S COUNSEL IN THIS NEGLIGENCE ACTION DEMONSTRATED A JUSTIFIABLE EXCUSE FOR NOT TIMELY FILING A NOTE OF ISSUE AFTER A NINETY-DAY DEMAND, PLAINTIFF DID NOT DEMONSTRATE A MERITORIOUS CAUSE OF ACTION; PLAINTIFF SUBMITTED AN AFFIDAVIT WHICH RELIED ON HEARSAY PROVIDED BY TWO SOURCES, BUT DID NOT SUBMIT AFFIDAVITS FROM THOSE SOURCES (FIRST DEPT).

The First Department, reversing Supreme Court, determined, although plaintiff offered a justifiable excuse for failing to timely file a note of issue, plaintiff did not demonstrate a meritorious cause of action. Therefore the complaint should have been dismissed. The complaint alleged the defendants negligently failed to provide adequate mental health and substance abuse treatment to the decedent, who died of a drug overdose in a shelter owned and operated by defendants:

Following a period of over one year during which plaintiff failed to respond to their discovery demands, defendants served plaintiff with a written demand to serve and file a note of issue within 90 days (see CPLR 3216[b]). Plaintiff failed to respond within the 90-day period, resulting in defendants’ motions to dismiss for failure to prosecute.

Although plaintiff’s counsel offered a justifiable excuse for the failure to file a note of issue following defendants’ service of 90-day notices, plaintiff failed to submit an adequate affidavit of merit demonstrating a meritorious cause of action in opposition to defendants’ motions … . In her affidavit, plaintiff, who had no personal knowledge of the events in question, relied on two unnamed hearsay sources … . Plaintiff offered no excuse for failing to provide affidavits from the shelter residents who supplied her with the information upon which her affidavit was based … , and, in any event, she did not show that defendants’ negligence was “a substantial cause of the events” resulting in her son’s death … . Felipe v Volunteers of Am.-Greater N.Y., 2025 NY Slip Op 06252, First Dept 11-13-25

Practice Point: In seeking to avoid dismissal of a complaint for failing to timely file a note of issue after a 90-day demand, a plaintiff must offer a justifiable excuse and demonstrate a meritorious cause of action. Here plaintiff’s counsel provided a justifiable excuse. But to demonstrate a meritorious cause of action plaintiff submitted an affidavit which relied on hearsay. Without affidavits from the sources of the hearsay, a meritorious cause of action was not demonstrated and the complaint should have been dismissed.

 

, , ,

THE PETITION ALLEGED THE DECEASED CO-TRUSTEE CONCEALED THE TRUST AND DISTRIBUTIONS TO THE TRUST BENEFICIARIES; PETITIONERS HAD STANDING TO SEEK DISGORGEMENT OF THE COMMISSIONS PAID TO THE DECEASED CO-TRUSTEE UNDER “BREACH OF FIDUCIARY DUTY” AND “FAITHLESS SERVANT” THEORIES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the petition alleging Kendall Chen, the deceased co-trustee of his father’s trust, breached his fiduciary duty to the trust and to the trust beneficiaries, and alleging a “faithless servant” claim, should not have been dismissed. Kendall allegedly concealed the existence of the trust from the beneficiaries (his children). Petitioners had standing to seek disgorgement of the commissions paid to Kendall:

The petition alleged that Kendall actively subverted the trust’s stated purpose insofar as, from 2000 until 2016, he concealed from his children the existence of the trust and the joint bank accounts into which distributions from the trust were made for each grandchild, and converted a significant portion of those funds for his personal financial benefit. If proven, Kendall’s conduct constituted a breach of his fiduciary duty to the trust (as well as to his children), and the trust may recover the commissions paid to him at a time when he was a faithless servant, even if the trust suffered no damages … .

Indeed, the trust was damaged by Kendall’s receipt of commissions at a time when he allegedly breached his fiduciary duty to the trust, and it is for that reason that petitioners have standing to seek disgorgement of the commissions paid to Kendall from 2000 to 2015. The corpus of the trust was diminished by the payment of the commissions when Kendall was diverting to himself the distributions intended for his children. …

We reject the estate’s argument that the faithless servant claim is unpreserved. The doctrine has a “close relationship and overlap” with breach of fiduciary duty, which petitioners did raise before the motion court … .  Matter of Chen, 2025 NY Slip Op 06255, First Dept 11-13-25

Practice Point: Here it was alleged the co-trustee concealed the existence of the trust and distributions from the trust from his children, the beneficiaries of the trust. The petitioners had standing to seek disgorgement of the commissions paid to the co-trustee under “breach of fiduciary duty” and “faithless servant” theories.

 

, , ,

​ IN THIS FORECLOSURE ACTION, THE REQUEST FOR A SETTLEMENT CONFERENCE PURSUANT TO CPLR 3408 WAS NOT APPROPRIATE BECAUSE THE BORROWER WAS DECEASED; BECAUSE, UNDER THE FACTS, A SETTLEMENT CONFERENCE WAS NOT A PREREQUISITE FOR FILING A DEFAULT JUDGMENT, THE REQUEST FOR A CONFERENCE DID NOT HOLD THE FORECLOSURE ACTION IN ABEYANCE AND IT SHOULD HAVE BEEN DISMISSED AS ABANDONED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the foreclosure action must be dismissed as abandoned. Plaintiff argued that its request for a settlement conference pursuant to CPLR 3408 constituted “the taking of proceedings” within one year of the default and therefore dismissal of the action as abandoned was precluded. The First Department agreed that, under the circumstances contemplated by CPLR 3408, requesting a settlement conference would demonstrate the action was not abandoned. Here, however, CPLR 3408 did not apply because the borrower was deceased and the action was brought by an executor. Because CPLR 3408 did not apply, the request for a settlement conference did not qualify as “the taking of proceedings:”

… [T]his foreclosure action must be dismissed as abandoned, because plaintiff’s argument is premised on its mistaken assumption that it was required to file an RJI seeking a mandatory conference before it could move for a default judgment. …

… CPLR 3408(a)(1) requires a mandatory settlement conference in “a residential foreclosure action involving a home loan” where “the defendant is a resident of the property subject to foreclosure.” A mandatory conference is not required where the defendant does not reside at the property when the foreclosure action is commenced … . Watkins, the borrower, was not a resident of the property when the foreclosure action was commenced because he died two years earlier.

Additionally, a mandatory conference is required for “a home loan” which is defined, among other things, to include a requirement that “[t]he borrower is a natural person” (RPAPL 1304[6][a][1][i]). Here, the borrower was deceased when plaintiff commenced this action against Thomas in her capacity of executrix of Watkins’s estate. Thomas is neither a borrower, nor a natural person in this context … . Municipal Credit Union v Thomas, 2025 NY Slip Op 06260, First Dept 11-13-25

Practice Point: In a foreclosure action, where the criteria for a settlement conference pursuant to CPLR 3408 are met, a request for a conference within one year of a default will constitute “the taking of proceedings” and preclude dismissal of the action as abandoned. However where, as here, CPLR 3408 is inapplicable because the borrower is deceased, the request for a settlement conference did not constitute “the taking of proceedings” and did not preclude a finding of abandonment.

 

, ,

ALTHOUGH THE FAILURE TO SUBMIT A “NON-MILITARY AFFIDAVIT” DEMONSTRATING DEFENDANT IS NOT IN THE MILITARY IS A VALID GROUND FOR DENYING A MOTION TO ENTER A DEFAULT JUDGMENT, IT IS NOT A GROUND FOR VACATING A DEFAULT JUDGMENT UNLESS THE DEFENDANT DEMONSTRATES HE OR SHE WAS, IN FACT, IN THE MILITARY (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Genovesi, determined: (1) although the default judgement in this breach of contract action was improperly entered because a so-called “non-military affidavit” demonstrating defendant was not in the military was not submitted by the plaintiff, the absence of a “non-military affidavit” does not warrant vacatur of the default judgment unless the defendant demonstrates he or she was, in fact, in the military (not the case here); and (2) because the damages in this breach of contract action were estimated and were not for a “sum certain,” an inquest is required. Here plaintiff hired defendant to do concrete work for a construction project. The complaint alleged the work was not completed and sought estimated damages over $900,000:

It is clear that a non-military affidavit is counted amongst the proof required for a movant to meet its burden on a motion for leave to enter a default judgment. A movant’s failure to provide a non-military affidavit is sufficient to warrant denial of such a motion in the first instance … . * * *

It … that the [New York State Soldiers’ and Sailors’ Civil Relief Act] carves out a remedy for vacatur of default judgments … . However, this remedy is limited to applications made “by or on behalf of the servicemember” and “for the purpose of allowing the servicemember to defend the action” under certain circumstances. The statutory text does not support the defendants’ assertion that any person may seek to vacate a default judgment based on a failure to comply with the Act. Therefore, we hold that a movant’s failure to provide a non-military affidavit does not entitle a defendant to vacatur of an otherwise validly entered default judgment as of right. Where, as here, the defaulting party has made no assertion of being on active military duty at the time of his or her default, he or she falls outside of the protection afforded by the Act. * * *

“Where the damages sought are for a ‘sum certain or for a sum which can by computation be made certain,'” CPLR 3215(a) permits the clerk, upon proper proof, to enter judgment up to the amount demanded in the complaint, without notice to the defendant … . Otherwise, an application to the court pursuant to CPLR 3215 is required and an inquest is appropriate to assess damages … . Where damages cannot be determined without extrinsic proof, an inquest is required … . Tri-Rail Designers & Bldrs., Inc. v Concrete Superstructures, Inc., 2025 NY Slip Op 06209, Second Dept 11-12-25

Practice Point: The New York State Soldiers’ and Sailors’ Civil Relief Act requires a plaintiff seeking a default judgment to submit a “non-military affidavit” demonstrating defendant is not in the military. Consult this decision for instruction on how to do that. Failure to submit a “non-military affidavit” is a valid ground for denial of a motion for a default judgment but, it is not enough to warrant vacatur of a default judgment. Defendant must prove he or she was, in fact, in the military to warrant vacatur on this ground.

Practice Point: If damages are not based on a “sum certain,” where plaintiff seeks a default judgment, an inquest to determine damages is required.

 

,

IN THIS “BAR FIGHT” “INADEQUATE SECURITY” ACTION, THE DEFENDANT BAR HAD TIMELY SUED ITS SECURITY COMPANY AS A THIRD-PARTY DEFENDANT; AFTER THE STATUTE OF LIMITATIONS EXPIRED, PLAINTIFF SOUGHT TO SUE THE SECURITY COMPANY DIRECTLY UNDER A “RELATION BACK” THEORY; PLAINTIFF’S MOTION TO SERVE AND FILE AN AMENDED COMPLAINT AGAINST THE SECURITY COMPANY DIRECTLY SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for leave to serve and file an amended complaint adding defendant security company, MAS, after the statute of limitations had expired, should have been granted. Plaintiff was punched in a bar owned by defendant B&M. Plaintiff sued the bar alleging inadequate security, The bar then sued MAS, which provided security for the bar. MAS, therefore, was involved in the litigation as a third-party defendant before the statute of limitations expired:

Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was for leave to serve and file a supplemental summons and amended complaint adding MAS as a direct defendant. “In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit” … . “Delay alone is insufficient to bar an amendment to the pleading; [i]t must be lateness coupled with significant prejudice to the other side” … .

Here, … the three-year statute of limitations applicable to the plaintiff’s cause of action alleging negligence (see CPLR 214[5]) had expired by the time that the plaintiff moved … for leave to serve and file a supplemental summons and amended complaint adding MAS as a direct defendant, whether the amendment may be allowed depends upon whether the relation-back doctrine applies (see CPLR 203[f] …), with the burden being on the plaintiff to establish that the doctrine applies … . B & M’s third-party complaint and the plaintiff’s proposed amended complaint arise out of the same conduct, transaction, or occurrence … . Also, there is no dispute that MAS was “a participant in the litigation” … . Moreover, “[t]he proposed amendment was not palpably insufficient or devoid of merit, and there was no prejudice to [MAS] in allowing the plaintiff to amend the complaint to add it as a direct defendant” … .

Contrary to the Supreme Court’s determination, the plaintiff was not required to demonstrate that MAS and B & M were united in interest since the record demonstrates that MAS had actual notice of the plaintiff’s potential cause of action against it within the applicable limitations period and was a third-party defendant in the action … . Egelandsdal v Massaro, 2025 NY Slip Op 06156, Second Dept 11-12-25

Practice Point: Consult this decision for insight into the criteria for the application of the “relation back” theory which allows suit after the statute of limitations has run. Here in this bar-fight “inadequate security” action against defendant bar, the bar had timely sued its security company as a third-party defendant. Because the security company was already involved in the litigation, and because the complaint against the bar and the security company arose out of the same conduct, the “relation back” criteria of CPLR 203(f) were met and plaintiff should have been allowed to sue the security company directly after the statute of limitations had expired.​

 

, , ,

DEFENDANTS IN THIS BREACH OF CONTRACT ACTION SHOULD HAVE BEEN SANCTIONED FOR SPOLIATION OF EVIDENCE, I.E., THE DESTRUCTION OR LOSS OF EMAILS; PLAINTIFFS’ MOTION TO STRIKE THE ANSWER WAS PROPERLY DENIED; HOWEVER, PLAINTIFFS WERE ENTITLED TO AN ADVERSE INFERENCE JURY INSTRUCTION AT TRIAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendants should have been sanctioned for spoliation of evidence, i.e., the failure to preserve relevant emails. The plaintiffs alleged defendants performed faulty renovation-work and thereby breached the renovation contract:

“Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126” … . “The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence” … . “A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense” … . “‘A culpable state of mind for [the] purposes of a spoliation sanction includes ordinary negligence'” … . Further, “[s]triking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct and, in order to impose such a sanction, the court ‘will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness'” … . “In contrast, where the moving party has not been deprived of the ability to establish his or her case or defense, a less severe sanction is appropriate” … . “[A]dverse inference charges have been found to be appropriate even in situations where the evidence has been found to have been negligently destroyed” … .

… [P]laintiffs demonstrated that the defendants were on notice that they had an obligation to preserve their email accounts and emails prior to the time that they were lost or destroyed. The plaintiffs also demonstrated that the emails were lost or destroyed with a culpable state of mind and that the emails were sufficiently relevant to the litigation … . Nonetheless, contrary to the plaintiffs’ contention, the drastic remedy of striking the defendants’ answer was not warranted … . Under the circumstances, the Supreme Court should have granted that branch of the plaintiffs’ motion which was pursuant to CPLR 3126 to strike the defendants’ answer to the extent of directing that an adverse inference charge be issued at trial against the defendants with respect to the loss or destruction of their email accounts and emails … . Dorman v Luva of NY, LLC, 2025 NY Slip Op 06155, Second Dept 11-12-25

Practice Point: Consult this decision for a concise explanation of the criteria for finding spoliation of evidence and the appropriate sanctions. In this breach of contract action, plaintiffs demonstrated defendants destroyed or lost relevant emails with a “culpable state of mind.”

 

, , ,

RESPONDENT THREATENED SELF HARM AND WAS TAKEN INTO CUSTODY PURSUANT TO THE MENTAL HYGIENE LAW; THE JUDGE DECLINED TO ISSUE A TEMPORARY “EXTREME RISK PROTECTION ORDER” (ERPO) AND SET THE MATTER DOWN FOR A HEARING; SUBSEQUENTLY THE JUDGE, SUA SPONTE, CANCELED THE HEARING AND DISMISSED THE PETITION, ACTIONS FOR WHICH THE JUDGE HAD NO AUTHORITY; MATTER REMITTED FOR A HEARING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the judge, who had declined to issue a temporary “extreme risk protection order” (ERPO) for respondent and had set the matter down for a hearing, did not have the authority to, sua sponte, cancel the hearing and dismiss the petition. After respondent had threatened self harm he was taken into custody pursuant to the Mental Hygiene Law:

… [O]ne day prior to the scheduled hearing, Supreme Court, sua sponte, issued a decision canceling the hearing and dismissing the petition. As grounds for the dismissal, the court found that dismissal best served the interest of preserving judicial and law enforcement resources given respondent’s inability to purchase a firearm due to the arrest pursuant to Mental Hygiene Law § 9.41, purported hospital admission pursuant to Mental Hygiene Law § 9.39 (a) and the lack of any indication that respondent owned any firearms in New York at the time of the proceeding. …

To begin, as the order on appeal was issued on a sua sponte basis, no appeal lies as of right (see CPLR 5701 [a] [2]). Nevertheless, “we treat the notice of appeal as a request for permission to appeal and grant the request” … .

… Supreme Court’s sua sponte order dismissing the petition must be reversed. “[S]ua sponte dismissals are to be used sparingly and only when extraordinary circumstances exist to warrant them” … . Here, there is no indication that such extraordinary circumstances exist. The grounds relied upon by Supreme Court — that the relief that would be provided by an ERPO was “duplicative and an inefficient use of judicial and law enforcement resources” — to the extent that they could constitute meritorious grounds for dismissal, require that petitioner be given the opportunity to respond and object … . Moreover, CPLR 6343 (1) clearly mandates that if a temporary ERPO is denied, such as occurred here, the court hold a hearing, no later than 10 business days after the application for the ERPO is served on the respondent, to determine whether an ERPO should be issued. Supreme Court’s sua sponte dismissal on grounds that are entirely absent from the statute was improper, and we therefore reverse and remit to conduct a hearing as required. Matter of Hogencamp v Matthew KK., 2025 NY Slip Op 06106, Third Dept 11-6-25

Practice Point: Sua sponte orders are not appealable as of right. Permission to appeal must be requested.​

Practice Point: Here the respondent threatened self harm and was taken into custody pursuant to the Mental Hygiene Law. A judge’s authority is constrained by the Mental Hygiene Law. Once an “extreme risk protection order” (ERPO) is denied by the judge and the matter is set down for a hearing, the judge cannot, sua sponte, cancel the hearing and deny the petition for reasons not prescribed in the Mental Hygiene Law.

 

, , ,

IN THIS EJECTMENT ACTION, DEFENDANT-TENANT’S “FAILURE TO STATE A CAUSE OF ACTION,” “WAIVER,” “CONSTRUCTIVE EVICTION,” “BREACH OF COVENANT OF QUIET ENJOYMENT,” “IMPROPER NOTICE OF DEFAULT,” AND “TRESPASS” AFFIRMATIVE DEFENSES SHOULD NOT HAVE BEEN DISMISSED; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined several affirmative defenses in this ejectment action should not have been dismissed. Plaintiff landlord sought to eject defendant tenant from a parking lot for nonpayment of rent. Defendant alleged, and plaintiff acknowledged, plaintiff had rented certain parking spaces to a third party. The Second Department held: (1) no motion lies to dismiss a “failure to state a cause of action” defense because plaintiff cannot test the sufficiency of its own claim; (2) the “waiver” defense should not have been dismissed despite the “nonwaiver” provision in the lease; (3) the constructive eviction and breach of covenant of quiet enjoyment defenses were supported by plaintiff’s renting spaces to a third party; (4) the ‘improper notice of default” defense was supported by the plaintiff’s failure to provide the notice called for by the lease; and (5) the “trespass” defense was supported by the rental of spaces to a third party:

CPLR 3211(b) provides that “[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit.” “When moving to dismiss, the plaintiff bears the burden of demonstrating that the affirmative defenses ‘are without merit as a matter of law because they either do not apply under the factual circumstances of [the] case, or fail to state a defense'” … . “‘On a motion pursuant to CPLR 3211(b), the court should apply the same standard it applies to a motion to dismiss pursuant to CPLR 3211(a)(7), and the factual assertions of the defense will be accepted as true'” … . “‘Moreover, if there is any doubt as to the availability of a defense, it should not be dismissed'” … . Diversified Bldg. Co., LLC v Nader Enters., LLC, 2025 NY Slip Op 06047, Second Dept 11-5-25

Practice Point: Consult this decision for insight into the criteria for dismissal of an affirmative defense and the elements of “waiver,” “constructive eviction,” “breach of covenant of quiet enjoyment,” “Improper notice of default,” and “trespass” affirmative defenses as alleged by defendant-tenant in this ejectment action brough by plaintiff-landlord.

 

, ,

PETITIONER, A TRANSGENDER INDIVIDUAL, WAS ENTITLED, FOR PERSONAL SAFETY REASONS, TO THE SEALING OF THE RECORD OF HER NAME-CHANGE PROCEEDING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner, a transgender individual, was entitled, for her personal safety, to the sealing of the record of her name-change proceeding:

We analyzed Civil Rights Law § 64-a in Matter of Cody VV. (Brandi VV.) (226 AD3d 24 [3d Dept 2024]). There, Supreme Court — the same justice — denied an applicant’s request to seal the record of the applicant’s name-change proceeding … . Reversing the court’s denial and ordering the applicant’s record sealed, we observed, in sum and substance, that the relevant statutory language reflects the Legislature’s determination that transgender individuals face threats to their personal safety that are real, constant and everywhere … . Thus, only in an “extraordinary” case will there be a “substantial basis” to find that an open court record of a name change proceeding would not place a transgender applicant’s safety at risk … .

In a “customary” case like this one, protecting the applicant from the threat of harm posed by an open court record of a name change proceeding necessarily takes priority over the public’s ability to access that court record … . To reverse those priorities is to intrude upon the policymaking authority of the Legislature. To deny a sealing request based upon those inverted priorities is to abuse the limited judicial discretion available under Civil Rights Law § 64-a. To decline to seal the record despite the applicant’s showing of jeopardy is to place the applicant at risk of the very harms the statute is meant to guard against … .

​… [P]etitioner affirmed her transgender status and that she was seeking to change her name to one that reflects her female gender identity, which is the name she uses in her personal and professional life. She expressed her fear that public access to her name change would disclose her transgender status and place her at increased risk of hate crimes, harassment and other discrimination. In view of the totality of circumstances … , petitioner has demonstrated that she is entitled to have the record of her name change proceeding sealed pursuant to Civil Rights Law § 64-a … . Matter of Kieran B., 2025 NY Slip Op 06006, Third Dept 10-30-25

Practice Point: In Civil Rights Law 64-a, the legislature recognized the personal safety issues raised when a transgender individual seeks a name-change. Therefore, sealing of the name-change record reflects the legislative intent and should be the general rule.

 

, ,

THE PROCESS SERVER KNEW WHERE DEFENDANT LIVED AND WORKED AND MADE SEVERAL UNSUCCESSFUL ATTEMPTS TO SERVE DEFENDANT AT HOME; WITHOUT MAKING ANY ATTEMPT TO SERVE DEFENDANT AT WORK, THE PROCESS SERVER RESORTED TO “NAIL AND MAIL;” THE PROCESS SERVER DID NOT DEMONTRATE “DUE DILIGENCE;” THE COURT NEVER ACQUIRED PERSONAL JURISDICTION OVER DEFENDANT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the process server did not demonstrate due diligence in attempting to serve defendant, therefore the court did not acquire personal jurisdiction:

“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” … . “The term due diligence is not defined by statute, and is interpreted on a case-by-case basis” … . 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” … .

… [T]he process server’s prior attempts at service did not demonstrate due diligence. Two out of three of the process server’s prior attempts at personal delivery at the defendant’s residence occurred during weekday hours when it could reasonably have been expected that the defendant was either working or in transit to or from work. The prior attempts were made on Thursday, April 17, 2008, at 6:15 p.m.; on Saturday, April 19, 2008, at 1:30 p.m.; and on Monday, April 21, 2008, at 8:20 a.m. The Saturday attempt occurred at a time when the defendant may have had reasons not to be home. The process server averred that a neighbor confirmed that the defendant resided at that address, but gave a negative reply when asked if the neighbor was aware of the defendant’s normal routine and place of business. Attached to the affidavit of service were the results of a “people at work” search, which revealed a company address for the defendant. Yet the process server made no inquiries about the defendant at that address before resorting to affix and mail service. Under the circumstances, the plaintiff failed to act with due diligence before relying on affix and mail service pursuant to CPLR 308(4) … . Bank of N.Y. Mellon v DeFilippo, 2025 NY Slip Op 05933, Second Dept 10-29-25

Practice Point: Consult this decision for insight into what constitutes “due diligence” in attempting to serve a defendant. Here several failed attempts at defendant’s residence was not enough. The process server did not attempt to serve defendant at work before resorting to “nail and mail.”​

 

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