After multiple unsuccessful attempts at court-ordered personal service, the Family Court directed the father to serve the mother in accordance with CPLR 308(4) may be accomplished "by affixing the summons to the door of either the . . . dwelling place or usual place of abode within the state of the person to be served and by . . . mailing the summons to such person at his or her last known residence." In moving to dismiss the petition due to lack of personal jurisdiction, the mother effectively acknowledged that she had received a copy of the summons and petition affixed to the door of her home but stated simply, "To date, I have not received any mailing of the summons/petition."
In opposition, the father submitted an affidavit of service from a process server, in which the process server averred that he had mailed the summons to the mother at her residence by enclosing it in a post-paid wrapper marked "'Personal and Confidential'" and delivering it to a branch of the United States Postal Service, pursuant to CPLR 3211[e]. In reply, the mother failed to submit an affidavit elaborating on her bare denial of receipt of the summons and petition by mail at her admitted residence.
The Appellate Division determined that the Family Court erred in directing a hearing to determine the validity of service of process upon the mother and should have found that service of process upon the mother was properly effectuated. The Appellate Division also noted that, in any event, the court had no authority to dismiss the petition for lack of personal jurisdiction, citing Domestic Relations Law § 76[3].
Matter of Rodriguez v. Escobar, NY Slip Op 01224 (2d Dep't March 5, 2025)
