Service must be made in strict compliance with the statutory methods for effecting personal service upon a natural person' pursuant to CPLR 308, Here, the plaintiff purportedly served the defendant by the affix and mail method of CPLR 308(4). Service pursuant to CPLR 308(4) may be used only where service pursuant to CPLR 308(1) or (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.
Here, according to his affidavit of service, the process server made prior attempts at personal delivery of the summons and complaint at the defendant's residence at different times of the day between Thursday, December 21, 2017 and Friday, December 29, 2017. Although one of those times was on December 23, 2017, a Saturday, the attempts at service occurred at the height of the holiday season, when the defendant may have had reasons not to be home. The process server noted that holiday lights were on in the windows of the residence on December 23, and that both. floors of the residence were illuminated on December 26. Nevertheless, considering the holiday season, the process server's observations were not a sufficient basis to believe that the defendant was evading service. Moreover, the process server stated that he was unable to speak to a neighbor regarding the defendant's whereabouts.
In addition, in the year prior to the commencement of this action, in applying for a loan modification, the defendant was required to disclose his employer and address of employment to the plaintiff. The plaintiff did not try to serve the defendant at his place of employment. The plaintiff failed to demonstrate that the process server acted with due diligence before resorting to affix and mail service pursuant to CPLR 308(4).
Bank of America, N.A. v. Fischer, NY Slip Op 05112 (2d Dep't October 11, 2023)
