Tuesday, July 15, 2014

Service, and the due diligence requirement of 308(4).

Practice point:  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. Satisfying the due diligence requirement entails a showing that the process server made genuine inquiries about the defendant's whereabouts and place of employmentt. Here, the process server's testimony that he inquired as to the defendant's whereabouts from a neighbor was not credible, as he was unable to provide any description at all of the neighbor, not even the gender. The affidavit of service referred to a "person spoken to," but provided no description, although there were spaces to insert the person's gender, skin color, hair color, approximate age, height, and weight.

Student note:  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.

Case:  Cadlerock Joint Venture, L.P. v. Kierstedt, NY Slip Op 05147 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Spoilation, the law, and videotape.