Thursday, June 30, 2016

CPLR 308(4) and the due diligence standard.

Practice point:  Service pursuant to CPLR 308(4), which allows for affixing the summons to the door of the place of business, dwelling place, or usual place of abode, with other prerequisites, may be used only where personal service under CPLR 308(1) and (2) cannot be made with due diligence.

Student note:  "Due diligence" is not defined in the statutory framework, and the term has been interpreted and applied on a case-by-case basis.

Case:  Amtrust-NP SFR, Venture, LLC v. Emmel, NY Slip Op 04894 (2d Dep't June 23, 2016)

Here is the decision.

Tomorrow's issue:  A fall on a wet staircase.