Nail And Mail Service Upon Attorney Rejected

CPLR 308 requires that service be attempted by personal delivery of the summons “to the person to be served” (CPLR 308[1]), or by delivery “to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode” (CPLR 308[2]).

An alternative methods of service pursuant to CPLR 308(4), commonly known as “nail and mail” service, may be used only where service under CPLR 308(1) or 308(2) cannot be made with “due diligence.”  Nail and mail service is effected “by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person . . . at his or her actual place of business” (CPLR 308[4]).

Just what constitutes “due diligence” so as to permit nail and mail service under CPLR 308(4)? A case from the Second Department last week demonstrates that a single attempted personal service may not be sufficient – Estate of Edward S. Waterman v Jones, 2007 NY Slip Op 07815.

The action was one for legal malpractice. The process server attempted to serve the defendant attorney with a copy of the summons and complaint at his actual place of business on August 23, 2004, at 10:00 A.M. The process server observed the defendant’s name on an outside shingle, but the office was closed, locked, and without a doorbell. The process server used his cellular phone to call the number listed on the outside shingle and received neither a personal reply nor an answering service reply. Nonetheless, that same day the process server mailed the summons and complaint to the very same premises in order to ostensibly effectuate “nail and mail” service. On the following day, August 24, 2004, the process server returned to the same location at 9:00 A.M. and, upon seeing that the conditions were the same as the day before, affixed the summons and complaint to the door. The affidavit of service did not refer to any efforts to ascertain the defendant’s residential address and to serve process at that location.

The Second Department found that the purported nail and mail service was ineffective since the plaintiff’s one purported personal service attempt at the defendant’s place of business failed to comply with the “due diligence” requirement of CPLR 308(4). The Court found it significant that the affidavit of service did not describe any efforts to ascertain the defendant’s whereabouts, dwelling place, or place of abode. Also, there was no indication that the process server made any inquiries to the commercial neighbors, checked telephone listings, or conducted any search with the Department of Motor Vehicles to determine the defendant’s residential address. Moreover, although the process server observed that the place of business was closed, locked, without a doorbell, and without an answering service, he nonetheless mailed the papers to that address notwithstanding the fact that CPLR 308(4) also authorized him to mail the papers to the defendant’s last known residence.

Thus, the Court granted the defendant attorney’s motion to dismiss for lack of personal jurisdiction.

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