Jason Crane Landscaping, Inc. v Wolman

[*1] Jason Crane Landscaping, Inc. v Wolman 2018 NY Slip Op 51903(U) Decided on December 20, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 20, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : ANTHONY MARANO, P.J., JERRY GARGUILO, TERRY JANE RUDERMAN, JJ
2017-1058 S C

Jason Crane Landscaping, Inc., Respondent,

against

Derek Wolman and Karen Wolman, Appellants.

Davidoff, Hutcher & Citron, LLP (Andrew K. Rafalaf of counsel), for appellants. Karen E. Gunkel and Tara A. Kavanagh of counsel, for respondent.

Appeal from an order of the District Court of Suffolk County, Sixth District (James P. Flanagan, J.), dated May 24, 2016. The order, following a hearing, denied defendants' motion to dismiss the complaint pursuant to CPLR 3211 (a) (8), or for alternative relief.

ORDERED that the order is reversed, without costs, and the branch of defendants' motion seeking to dismiss the complaint pursuant to CPLR 3211 (a) (8) is granted.

In October 2015, plaintiff commenced this action to recover for landscaping services rendered to defendants at their vacation home in 2014, and based on an account stated. Defendants moved to, among other things, dismiss the complaint pursuant to CPLR 3211 (a) (8), alleging that they had not been properly served with the summons and complaint pursuant to CPLR 308 (4). By order dated May 24, 2016, the District Court, following a traverse hearing and notwithstanding that the process server had admitted being told by a neighbor that defendants had not been seen at the vacation home "in a while," denied defendants' motion.

"CPLR 308 (4) provides that where personal service under either CPLR 308 (1) or (2) 'cannot be made with due diligence,' service then may be effectuated via 'nail and mail' service, 'which entails affixing the summons to the door of the defendant's "actual place of business, dwelling place or usual place of abode," and by mailing the summons either [*2]to the defendant's last known residence or actual place of business' (McSorley v Spear, 50 AD3d 652, 653 [2008], lv denied 10 NY3d 715 [2008], quoting CPLR 308 [4]; see Serraro v Staropoli, 94 AD3d 1083, 1084 [2012]; State of NY Higher Educ. Servs. Corp. v Sparozic, 35 AD3d 1069, 1070-1071 [2006], lv dismissed 8 NY3d 958 [2007]; Smith v Wilson, 130 AD2d 821, 821 [1987]).While the precise manner in which due diligence is to be accomplished is 'not rigidly prescribed' (State of NY Higher Educ. Servs. Corp. v Sparozic, 35 AD3d at 1071 [internal quotation marks and citation omitted]), the requirement that due diligence be exercised 'must be strictly observed, given the reduced likelihood that a summons served pursuant to [CPLR 308 (4)] will be received' (McSorley v Spear, 50 AD3d at 653 [internal quotation marks and citation omitted]; see Serraro v Staropoli, 94 AD3d at 1084; Smith v Wilson, 130 AD2d at 822). 'What constitutes due diligence is determined on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but on their quality' (McSorley v Spear, 50 AD3d at 653 [citation omitted]; accord Serraro v Staropoli, 94 AD3d at 1084; see Maines Paper & Food Serv., Inc. v Boulevard Burgers Corp., 52 AD3d 1150, 1151 [2008]), and the plaintiff, who bears the burden of establishing that personal jurisdiction over the defendant was acquired (see Smith v Wilson, 130 AD2d at 822), must show 'that the process server made genuine inquiries about the defendant's whereabouts and place of employment' (Estate of Waterman v Jones, 46 AD3d 63, 66 [2007]; accord Serraro v Staropoli, 94 AD3d at 1085)" (Greene Major Holdings, LLC v Trailside at Hunter, LLC, 148 AD3d 1317, 1320-1321 [2017]).

In the instant matter, we find that plaintiff failed to establish compliance with CPLR 308 (4) in that it did not show that it had made genuine inquiries into defendants' whereabouts prior to resorting to the "nail and mail" service.

Accordingly, the order is reversed and the branch of defendants' motion seeking to dismiss the complaint pursuant to CPLR 3211 (a) (8) is granted.

MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 20, 2018