BOARD OF MANAGERS OF 50 WEST 127TH STREET CONDOMINIUM v. LLC (2019)

Supreme Court properly determined that plaintiff did not establish that personal service could not be made with due diligence by personal delivery before effecting service pursuant to CPLR 308(4).  While a process server's affidavit evidencing three attempts at personal service over a period of time may satisfy the plaintiff's prima facie burden in some circumstances (see e.g. Ayala v. Bassett, 57 A.D.3d 387, 388, 870 N.Y.S.2d 261 [1st Dept. 2008] ), where, as in this case, it is evident that the defendant works during day time hours, a showing of three attempts to serve defendant at home on consecutive days, twice during working hours and once in the evening, is insufficient to demonstrate due diligence (see Barnes v. City of New York, 70 A.D.2d 580, 416 N.Y.S.2d 52 [2d Dept. 1979], affd 51 N.Y.2d 906, 907, 434 N.Y.S.2d 991, 415 N.E.2d 979 [1980];  see also Spath v. Zack, 36 A.D.3d 410, 829 N.Y.S.2d 19 [1st Dept. 2007];  Kaszovitz v. Weiszman, 110 A.D.2d 117, 120, 493 N.Y.S.2d 335 [2d Dept. 1985] ).  Here, defendant presented evidence that plaintiff and its managing agent knew of her travel and work schedule, which required her to be in Connecticut during the week, and plaintiff did not contest that showing (see Barnes, 51 N.Y.2d at 907, 434 N.Y.S.2d 991, 415 N.E.2d 979;  see CPLR 308[4] ).

Defendant did not waive the defense of lack of jurisdiction.  Before her incoming counsel filed a notice of appearance without mentioning the defense, she had already presented an order to show cause seeking to vacate the judgment based on lack of personal jurisdiction, and she moved to vacate based on improper service shortly after new counsel appeared.  In contrast, in the cases relied on by plaintiff and City West, the defendant's counsel filed a notice of appearance without preserving any objection to jurisdiction after the time to move or answer had elapsed, and did not move to vacate for years afterwards, indicating an intentional abandonment of the defense (see e.g. Wilmington Sav. Fund Socy., FSB v. Zimmerman, 157 A.D.3d 846, 846–847, 69 N.Y.S.3d 654 [2d Dept. 2018], lv denied 31 N.Y.3d 1135, 81 N.Y.S.3d 359, 106 N.E.3d 742 [2018];  Capital One Bank, N.A. v. Faracco, 149 A.D.3d 590, 590 [1st Dept. 2017] ).  Defendant's communications with plaintiff's managing agent in which she arranged to pay her arrears, cannot be construed as an appearance in the action, much less a waiver of her defense of lack of jurisdiction.

Because the judgment was entered without jurisdiction over defendant, City West is not entitled to restitution as an alternative remedy to vacatur of the foreclosure sale, as “[a] judgment rendered without jurisdiction is void” and “a deed [ ] issued in execution upon such a void judgment ․ is similarly void” (U.S. Bank, N.A. v. Bernhardt, 88 A.D.3d 871, 872, 931 N.Y.S.2d 266 [2d Dept. 2011] ).

We have considered City West's remaining contentions and find them unavailing.