Tuesday, January 2, 2007

In the matter of service, what constitutes due diligence?

County of Nassau v. Long
Decided on December 26, 2006
Appellate Division, Second Department

Contrary to the plaintiff's contention, the Supreme Court properly concluded that the attempts to serve the defendant Patrick Long at his residence did not satisfy the "due diligence" requirement for so-called "nail and mail" service under CPLR 308(4). Here, the attempts preceding service were made on August 18, 2005, a Thursday, at 7:00 P.M., August 19, 2005, at 3:45 P.M., and August 23, 2005, a Tuesday, at 7:44 P.M. These attempts were made on weekdays during hours when it reasonably could have been expected that Long was either working or in transit to or from work (see County of Nassau v Letosky, AD3d [2d Dept, Nov. 8, 2006]; O'Connell v Post, 27 AD3d 630, 631). Moreover, there is no indication that the process server made any attempt to locate Long's business address or to effectuate personal service thereat (see County of Nassau v Letosky, supra; Sanders v Elie, 29 AD3d 773, 774).

Can plaintiff amend, and then untimely file, proof of service?

County of Nassau v. Gallagher
Decided on December 26, 2006
Appellate Division, Second Department

In opposition to the defendant's motion to dismiss the complaint for lack of personal jurisdiction, the plaintiff submitted a document labeled "Amended Affidavit of Service," which was sworn to and filed more than three months after the alleged mailing of the summons and complaint to the defendant. In granting the defendant's motion, the Supreme Court noted that the plaintiff failed to file the proof of service with the office of the clerk of the court within 20 days after the mailing of the summons and complaint, as required under CPLR 308(2). Subsequently, in connection with its motion for leave to reargue the defendant's motion, the plaintiff submitted a copy of a prior, timely filed affidavit of service, and explained that the Amended Affidavit of Service was filed to correct the original affidavit's recitals of the dates of the delivery and the mailing of the summons and complaint, which were obviously incorrect. In opposing the defendant's motion to dismiss the complaint, however, the plaintiff had not requested that the original affidavit of service be amended, and had not even submitted that document to the court (see CPLR 3211[e]). Moreover, the plaintiff never sought an order permitting a late filing of proof of service (see Bank of New York v Schwab, 97 AD2d 450; Marazita v Nelbach, 91 AD2d 604).