CASANOVA v. City of New York, Defendant. (2024)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered April 21, 2023, which, following a traverse hearing, dismissed the original action and the related action against defendant Maria Lopez for lack of personal jurisdiction and vacated the default judgment against her, unanimously affirmed, without costs.  Appeal from interim order, same court and Justice, entered January 11, 2023, which, upon renewal and reargument, denied defendant Lopez's motion to dismiss and found that a traverse hearing was warranted to determine whether she was properly served, unanimously dismissed, without costs, as academic.

Supreme Court properly dismissed the actions against defendant Lopez following a traverse hearing for lack of personal jurisdiction and vacated the default judgment entered against her.  Contrary to plaintiff's contention, he did not carry his burden of proving effective service by a preponderance of the evidence pursuant to CPLR 308(4).  “Service under this provision is only appropriate where personal service or service by delivery on a person of suitable age and discretion at the actual place of business or dwelling place cannot be made with due diligence” (Schnur v. Balestriere, 208 A.D.3d 1117, 1119, 175 N.Y.S.3d 50 [1st Dept. 2022] [internal quotation marks omitted];  see Wood v. Balick, 197 A.D.2d 438, 438, 603 N.Y.S.2d 1 [1st Dept. 1993]).

During the traverse hearing, plaintiff's process server testified that he posted the summons and complaint on the door of the subject premises located at 713 Prospect Avenue in the Bronx (the premises), after making four attempts to serve Lopez there.  However, the process server also testified that while he was attempting to personally serve Lopez at the premises, which his employer had represented was her residence, someone at the premises told him Lopez did not live there.  This testimony established that the nail-and-mail service of process on Lopez was insufficient because plaintiff's process server did not first comply with the due diligence requirement of CPLR 308(4) (see generally Spath v. Zack, 36 A.D.3d 410, 413, 829 N.Y.S.2d 19 [1st Dept. 2007]).  Upon obtaining information that Lopez did not reside at the premises, due diligence required the process server to investigate her whereabouts on the date of service and whether the service address was actually her dwelling place or usual place of abode before resorting to the alternative method of serving her with the summons and complaint by nail-and-mail service (id.;  see also McSorley v. Spear, 50 A.D.3d 652, 654–654, 854 N.Y.S.2d 759 [2d Dept. 2008], lv denied 10 N.Y.3d 715, 862 N.Y.S.2d 336, 892 N.E.2d 402 [2008]).  There is no evidence that the process server did so, and the affidavit of service simply states that the process server served Lopez at her “dwelling place/usual place of abode.”

Plaintiff concedes that the premises were not Lopez's dwelling place or usual place of abode under the statute;  rather, he contends that Supreme Court should have found that his process server properly effectuated service of process at Lopez's actual place of business.  This argument is unavailing.  The process server's testimony did not establish that service of process could not be made with due diligence at the premises even if plaintiff had shown that the premises were Lopez's actual place of business (see CPLR 308[2], [4]).  The process server testified that, when he served Lopez, he did not believe that the premises were her principal place of business, and that he only tried to serve Lopez at the premises during normal business hours one time (see Wood v. Balick, 197 A.D.2d at 438, 603 N.Y.S.2d 1).

Plaintiff's post-service proffer of information to show that the premises were Lopez's actual place of business is immaterial because the issue is not whether the premises we're Lopez's actual place of business but whether the due diligence requirement at the time of service was met.  For this reason, Lopez's 2021 affidavit, where in an unrelated action she purportedly averred that the premises we're her actual place of business, although she stated that the affidavit was forged, also does not compel a different result.

Finally, plaintiff's claim that Supreme Court should have denied Lopez's motion to renew and reargue as untimely is unpreserved.  Even if we were to review the claim, we would find it unpersuasive because every court retains continuing jurisdiction to reconsider its prior interlocutory orders during the pendency of the action, regardless of the statutory time limits concerning motions to reargue (see Profita v. Diaz, 100 A.D.3d 481, 481, 954 N.Y.S.2d 40 [1st Dept. 2012]).