NCO Portfolio Mgt., Inc. v Godhwani

[*1] NCO Portfolio Mgt., Inc. v Godhwani 2004 NY Slip Op 51106(U) Decided on September 29, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 29, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., ARONIN and PATTERSON, JJ.
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NCO PORTFOLIO MANAGEMENT, INC., Appellant,

against

SHAM GODHWANI, Respondent.

Appeal by NCO Portfolio Management, Inc. from an order of the Civil Court, Queens County (E. Walker, J.), entered July 23, 2003, dismissing its petition to confirm an arbitrator's award.

Order unanimously affirmed without costs.

Inasmuch as the affidavit of service for the notice of petition and petition failed to demonstrate that service under CPLR 308 (2) could not be made with due diligence
(see CPLR 403; see also Earle v Valente, 302 AD2d 353 [2003]; Silber v Stein, 287 AD2d 494, 495 [2001]; Gurevitch v Goodman, 269 AD2d 355 [2000]; Moran v Harting, 212 AD2d 517 [1995]), the process server improperly resorted to nail and mail service under CPLR 308 (4). Accordingly, the court below properly determined that it did not have personal jurisdiction over respondent Godhwani and dismissed the petition (see e.g. Berger v Amer. Transit Ins. Co., 3 Misc 3d 130 [A], 2004 NY Slip Op 50390 [U] [App Term, 2d & 11th Jud Dists]; Traktman v [*2]Melo, 2002 NY Slip Op 40530 [U] [App Term, 2d & 11th Jud Dists]).
Decision Date: September 29, 2004