NIEBLING v. PIORECK (2023)

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Nassau County (Thomas Rademaker, J.), dated December 16, 2021.  The order, insofar as appealed from, denied those branches of the defendant's motion which were, in effect, pursuant to CPLR 5015(a)(4) to vacate a judgment of the same court (John M. Galasso, J.) entered April 9, 2015, upon his failure to appear or answer the complaint, and, thereupon, pursuant to CPLR 3211(a)(8) to dismiss the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and those branches of the defendant's motion which were, in effect, pursuant to CPLR 5015(a)(4) to vacate the judgment entered April 9, 2015, and thereupon, pursuant to CPLR 3211(a)(8) to dismiss the complaint are granted.

The plaintiff commenced this action in October 2014.  By order entered February 24, 2015, the Supreme Court granted the plaintiff's unopposed motion for leave to enter a default judgment and awarded the plaintiff a judgment against the defendant in the total sum of $80,053.64.  A judgment was entered on April 9, 2015.  In June 2021, the defendant moved, inter alia, in effect, pursuant to CPLR 5015(a)(4) to vacate the judgment entered upon his failure to appear or answer the complaint and, thereupon, pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction.  The court treated the defendant's motion as one pursuant to CPLR 5015(a)(1) and denied the motion.  The defendant appeals.

Pursuant to CPLR 5015(a)(4), the court which rendered a judgment or order may relieve a party from it upon such terms as may be just upon the ground of “lack of jurisdiction to render the judgment or order.”  Service of process upon a natural person must be made in strict compliance with statutory methods of service pursuant to CPLR 308 (see Washington Mut. Bank v. Murphy, 127 AD3d 1167, 1174;  Estate of Waterman v. Jones, 46 AD3d 63, 65).  The failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void (see Deutsche Bank Natl. Trust Co. v Williams, 215 AD3d 799, 800;  Emigrant Mtge. Co., Inc. v. Westervelt, 105 AD3d 896, 897).

“CPLR 308 requires that service be attempted by personal delivery of the summons ‘to the person to be served’ (id. § 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’ (id.  § 308[2])” (Wells Fargo Bank, N.A. v. Enitan, 200 AD3d 736, 738).  Service pursuant to CPLR 308(4) may be used only where service under CPLR 308(1) or (2) cannot be made with “due diligence” (id. § 308[4];  see Prego v. Bartkowski, 216 AD3d 679, 681;  Estate of Waterman v. Jones, 46 AD3d at 65).  “The due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received” (Prego v. Bartkowski, 216 AD3d at 681 [internal quotation marks omitted];  see Gurevitch v. Goodman, 269 A.D.2d 355, 355).  “For the purpose of satisfying the ‘due diligence’ requirement of CPLR 308(4), it must be shown that the process server made genuine inquiries about the defendant's whereabouts and place of employment” (Estate of Waterman v. Jones, 46 AD3d at 66;  see Serraro v. Staropoli, 94 AD3d 1083, 1085).

Here, the plaintiff failed to demonstrate that the process server acted with due diligence before relying on affix and mail service pursuant to CPLR 308(4) (see Faruk v. Dawn, 162 AD3d 744, 745;  Prudence v. Wright, 94 AD3d 1073, 1074).  The process server averred that he made two attempts to personally serve the defendant at his home before affixing the summons and complaint to the door of the defendant's home.  There was no evidence that the process server made any genuine inquiries about the defendant's whereabouts and place of employment, which was known to the plaintiff.

Accordingly, the Supreme Court should have granted those branches of the defendant's motion which were, in effect, pursuant to CPLR 5015(a)(4) to vacate the judgment and, thereupon, pursuant to CPLR 3211(a)(8) to dismiss the complaint (see Coley v. Gonzalez, 170 AD3d 1107, 1108–1109).

The defendant's remaining contentions are academic in light of the foregoing.

BRATHWAITE NELSON, J.P., DOWLING, WARHIT and LOVE, JJ., concur.