Finkelstein Newman Ferrara LLP v Manning

[*1] Finkelstein Newman Ferrara LLP v Manning 2012 NY Slip Op 50643(U) Decided on April 13, 2012 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 13, 2012
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ
570303/11.

Finkelstein Newman Ferrara LLP f/k/a/Finkelstein Newman LLP, Plaintiff-Appellant,

against

Leo Manning, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Kibbie F. Payne, J.), dated October 8, 2010, which, after a hearing, sustained the traverse and dismissed the complaint.

Per Curiam.

Order (Kibbie F. Payne, J.), dated October 8, 2010, reversed, with $10 costs, traverse denied, complaint reinstated, and matter remanded for further proceedings.

Finding plaintiff's process server to be a "candid [and] forthright" witness, the traverse court expressly determined that the process server made three weekday attempts to serve defendant at his residential apartment building over a five-day span, including a visit at 7:30 P.M. when, we note, a working person might generally be expected to be home. Based upon the traverse court's unchallenged findings as to the timing and chronology of the service attempts, we conclude that the process server exercised due diligence in attempting to serve defendant personally with the summons and complaint before resorting to nail-and-mail service pursuant to CPLR 308(4) (see Ayala v Bassett, 57 AD3d 387 [2008]; Albert Wagner & Son v Schreiber, 210 AD2d 143 [1994]; Lara v 1010 E. Tremont Realty Corp., 205 AD2d 468 [1994]; see also State of NY Higher Educ. Servs. Corp. v Sparozic, 35 AD2d 1069 [2006], lv dismissed 8 NY3d 958 [2007]; cf. Spath v Zack, 36 AD3d 410, 412-413 [2007])). This is so even if, as the traverse court apparently found, defendant did not attempt to evade service during the process server's third and final visit. Nor was it necessary that the process server, before resorting to nail-and-mail, attempt to serve defendant at his place of business (see Farias v Simon, 73 AD3d 569 [2010]; cf. Pizzolo v Monaco, 186 AD2d 727 [1992]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 13, 2012