GONZALEZ v. MARTE (2026)

The following papers numbered 1 to 2 were read on this motion:

Papers Numbered

Notice of Motion, Affidavit and Exhibits 1

Memorandum of Law 2

Plaintiff brings his motion seeking summary judgment in lieu of complaint against defendant in the amount of $120,000.00 for unpaid principal; late fees of $6,000.00; $11,283.29 in accrued interest through September 16, 2025, with interest continuing to accrue daily at the rate of $39.45; and the costs of this proceeding, including reasonable legal fees.

Defendant was purportedly served at his last known address by “nail and mail service.” “These attempts were made on weekdays during hours when it reasonably could have been expected that [defendant] was either working or in transit to or from work. Moreover, there is no indication that the process server made any attempt to locate [defendant's] business address or to effectuate personal service thereat.” Cnty. of Nassau v. Long, 35 AD3d 787, 787—88, 826 N.Y.S.2d 739, 740 (2d Dept. 2006). In this case, three of the four attempts made by the process server were during hours when defendant would be at work or in transit to or from work. Nor did the process server attempt to locate defendant's business address. This is not due diligence — especially considering the large sums demanded here, for the purchase of property and a business in the Dominican Republic.

“Although ‘due diligence’ is not defined in the statutory framework, the term has been interpreted and applied on a case-by-case basis. The due diligence requirement refers to the quality of the efforts made to effect personal service, and certainly not to their quantity or frequency. A mere showing of several attempts at service at either a defendant's residence or place of business may not satisfy the ‘due diligence’ requirement before resort to nail and mail service. However, ‘due diligence’ may be satisfied with a few visits on different occasions and at different times to the defendant's residence or place of business when the defendant could reasonably be expected to be found at such location at those times. 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, given the reduced likelihood that a summons served pursuant to nail and mail service will be received.” Est. of Waterman v. Jones, 46 AD3d 63, 66, 843 N.Y.S.2d 462, 464—65 (2d Dept. 2007). As the process server did not use due diligence here, the Court must deny the motion based on lack of jurisdiction.

If service were proper, however, CPLR § 3213 does allow an action based upon an instrument for the payment of money only to be commenced with a motion for summary judgment rather than a complaint. This procedure is intended to provide a speedy and effective means for resolving a presumptively meritorious claim. Banco Popular N. Am. v Victory Taxi Mgt., Inc., 1 NY3d 381, 383 (2004). The proponent of a CPLR § 3213 motion establishes a prima facie entitlement to judgment by offering proof, in evidentiary form, of the instrument for payment of money in question and of the failure of the defendant to pay in accordance with the terms of the instrument. If this showing is made, the burden shifts to defendant to come forward with evidentiary facts demonstrating the existence of a material issue of fact which would defeat summary judgment. See Fleet Bank v M & Z Handwear, Inc., 308 AD2d 507, 507 (2d Dept 2003). A review of the motion papers shows that if service had been proper, plaintiff would have established his prima facie burden.

However, given the problems with service, the Court must deny the motion and dismiss the action without prejudice. Should plaintiff commence a new action and serve it properly, plaintiff shall submit a proposed Order with any new motion. Plaintiff shall send a copy of this Decision and Order to defendant by overnight mail and fax/email/text, if any of those are known, within two business days of receipt.

The foregoing constitutes the decision and order of the Court.

Linda S. Jamieson, J.