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PacAmOr Bearings, Inc. v. Foley
Citations: 92 A.D.2d 959; 460 N.Y.S.2d 662; 1983 N.Y. App. Div. LEXIS 17382
Court: Appellate Division of the Supreme Court of the State of New York; March 2, 1983; New York; State Appellate Court
An appeal was made from a judgment of the Supreme Court at Trial Term, which denied the defendant's motion to dismiss the complaint for lack of personal jurisdiction. The court determined that the service of the summons and complaint was proper under CPLR 308, subdivision 4, after testimonies from the process server, the defendant, and family members. However, the appellate court found that the "nail and mail" service was invalid due to insufficient proof of "due diligence" by the process server. The process server attempted service on four occasions, with no response from the defendant. On the last attempt, after failing to properly affix the summons to the screen door, he placed it between the screen door and door jamb. The defendant’s child later found the document in the mailbox near the front door. The court emphasized the importance of the "due diligence" requirement, noting that the server failed to explore other options, such as using the unlocked screen door or inquiring with neighbors. The court ruled that the process server's actions were inadequate and constituted a lack of due diligence as a matter of law. Additionally, the method of wedging the summons between the screen door and door jamb did not meet the statutory definition of "affixation." Consequently, the appellate court reversed the lower court's judgment, granted the motion to dismiss the complaint, and awarded costs. The decision was concurred by Justices Sweeney, Main, Casey, Mikoll, and Yesawich, Jr.