Practice point: 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. As the statute does not define "due diligence," it has been interpreted and applied on a case-by-case basis. The due diligence requirement may be met 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.
Here, the process server's affidvit constituted prima facie evidence of proper service
pursuant to CPLR 308(4), as the process server made three attempts to
serve the defendant at his home at different times and on different days,
including a Saturday. Since there was no indication that the defendant worked Saturdays or that his
workplace was readily ascertainable, the plaintiff was not required to
attempt to serve the defendant at his workplace.
Student note: The defendant's bare and unsubstantiated denial of receipt was
insufficient to rebut the presumption of proper service, and a hearing
on the issue of service was not required.
Case: Deutsche Bank Natl. Trust Co. v. White, NY Slip Op 06542 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Stating an employment discrimination claim.
