LEMBERGER v. KHAN (2005)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Bernstein, J.H.O.), dated July 28, 2004, which, after a hearing, in effect, denied his motion pursuant to CPLR 3211(a)(8) to dismiss the action for lack of personal jurisdiction.

ORDERED that the order is affirmed, with costs.

“Nail and mail” service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with due diligence.  “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” (Gurevitch v. Goodman, 269 A.D.2d 355, 702 N.Y.S.2d 634).   Contrary to the defendant's contention, the Supreme Court properly concluded that the three attempts made by the plaintiffs' process server to personally serve him at his residence satisfied the due diligence requirement (see Johnson v. Waters, 291 A.D.2d 481, 738 N.Y.S.2d 369;  Rodriguez v. Khamis, 201 A.D.2d 715, 608 N.Y.S.2d 486;  Matos v. Knibbs, 186 A.D.2d 725, 588 N.Y.S.2d 911).