due diligence requirement in New York

2025NO. 134 RECEIVED NYSCEF: 01/14/2025 the person to be served, such affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later; service shall be complete ten days after such filing" "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" (Prego v Bartkowski, 216 AD3d 679,681 [2d Dept 2023], quoting Gurev

2023"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 AD2d 355, 355 ; see Matter of Ferrera v Serrano , 189 AD3d 1230, 1231 ).

2026The due diligence requirement, which "refers to the quality of the efforts made to effect personal service" ( Barnes v City of New York , 70 AD2d 580, 580 [internal quotation marks omitted]), 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" ( Wells Fargo Bank, N.A. v Enitan , 200 AD3d 736, 738 [internal quotation marks omitted]; see Estate of Waterman v Jones , 46 AD3d 63, 66 ).

2025For 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." Est. of Waterman v. Jones , 46 AD3d 63, 66 , 843 N.Y.S.2d 462 , 464—65 (2d Dept. 2007).

2025Mellon Trust Co., N.A. v Iaboni, 230 AD3d 1204 , 1205, quoting McSorley v Spear , 50 AD3d 652, 653 ). "'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'" ( Creswell Invs., Ltd. v Brazil+Q1 Ltd. , 234 AD3d 667 , 668, quoting Niebling v Pioreck , 222 AD3d 873 , 875).

2023"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" ( Matter of Ferrera v Serrano , 189 AD3d 1230, 1231 [internal quotation marks omitted]; see McSorley v Spear , 50 AD3d 652, 653 ).

2026"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" (<i>Wells Fargo Bank, N.A. v Enitan</i>, 200 AD3d at 738 [internal quotation marks omitted]).

2026The due diligence requirement, which "refers to the quality of the efforts made to effect personal service" ( Barnes v City of New York , 70 AD2d 580, 580 [internal quotation marks omitted]), 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" ( Wells Fargo Bank, N.A. v Enitan , 200 AD3d 736, 738 [internal quotation marks omitted]; see Estate of Waterman v Jones , 46 AD3d 63, 66 ).

2026"The due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that [*2] a summons served pursuant to that section will be received" ( Prego v Bartkowski , 216 AD3d 679, 681 [internal quotation marks omitted]).

2026The process server's affidavit stated that he attempted to serve Lakhanlall personally on December 3, 2019, a Tuesday, at 8:15 p.m. and on December 5, 2019, a Thursday, at 8:00 a.m., which was insufficient to satisfy the due diligence requirement ( see Sams Distribs., LLC v Friedman , 235 AD3d 1021 , 1023; Niebling v Pioreck , 222 AD3d at 875). "[T]here was no evidence that the process server made any genuine inquiries about the defendant's whereabouts and place of business" ( Sams Distribs., LLC v Friedman , 235 AD3d at 1023; see Prego v Bartkowski , 216 AD3d at 681 ).

2018The 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 [*2]to be found at such location at those times" ( Estate of Waterman v Jones , 46 AD3d at 66 ; see Wells Fargo Bank NA v Besemer , 131 AD3d 1047, 1048 ).

2017Under these circumstances, the Supreme Court improperly concluded that the due diligence requirement was not satisfied (see LaSalle Bank N.A. v Hudson, 139 AD3d 811, 811 [2016]; Wells Fargo Bank, NA v Besemer, 131 AD3d 1047, 1048 [2015]; JP Morgan Chase Bank, N.A. v Baldi, 128 AD3d 777, 777-778 [2015]; Wells Fargo Bank, N.A. v Cherot, 102 AD3d 768 [2013]; JPMorgan Chase Bank, N.A. v Szajna, 72 AD3d 902 [2010]; Lemberger v Khan, 18 AD3d 447, 447-448 [2005]).

2024The due diligence requirement of CPLR § 308(4) must be strictly complied with, given the reduced likelihood that a summons affixed to a door is less likely to be received (Matter of Ferrera v Serrano, 189 AD3d 1230, 1231 [2d Dept 2020]). 2 2 of 8 [* 2] FILED: KINGS COUNTY CLERK 10/08/2024 10:09 AM INDEX NO. 512815/2021 NYSCEF DOC.

2023"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" ( Matter of Ferrera v Serrano , 189 AD3d 1230, 1231 [internal quotation marks omitted]; see McSorley v Spear , 50 AD3d 652, 653 ).

2019Accordingly, the affidavit constituted prima facie evidence that the due diligence requirement was satisfied ( see id. ; JP Morgan Chase Bank, N.A. v Baldi , 128 AD3d 777, 777-778 ).

2018We agree with the Supreme Court that the affidavits constituted prima facie evidence that the due diligence requirement was satisfied ( see JP Morgan Chase Bank, N.A. v Baldi , 128 AD3d 777, 777-778 ).

2017Under these circumstances, the Supreme Court improperly concluded that the due diligence requirement was not satisfied (see LaSalle Bank N.A. v Hudson, 139 AD3d 811, 811 [2016]; Wells Fargo Bank, NA v Besemer, 131 AD3d 1047, 1048 [2015]; JP Morgan Chase Bank, N.A. v Baldi, 128 AD3d 777, 777-778 [2015]; Wells Fargo Bank, N.A. v Cherot, 102 AD3d 768 [2013]; JPMorgan Chase Bank, N.A. v Szajna, 72 AD3d 902 [2010]; Lemberger v Khan, 18 AD3d 447, 447-448 [2005]).

2016Contrary to the homeowner’s contention, under these circumstances, the due diligence requirement was satisfied (see Wells Fargo Bank, NA v Besemer, 131 AD3d 1047, 1048 [2015]; JP Morgan Chase Bank, N.A. v Baldi, 128 AD3d 777, 778 [2015]; Lemberger v Khan, 18 AD3d 447, 447-448 [2005]).

2017Under these circumstances, the Supreme Court improperly concluded that the due diligence requirement was not satisfied (see LaSalle Bank N.A. v Hudson, 139 AD3d 811, 811 [2016]; Wells Fargo Bank, NA v Besemer, 131 AD3d 1047, 1048 [2015]; JP Morgan Chase Bank, N.A. v Baldi, 128 AD3d 777, 777-778 [2015]; Wells Fargo Bank, N.A. v Cherot, 102 AD3d 768 [2013]; JPMorgan Chase Bank, N.A. v Szajna, 72 AD3d 902 [2010]; Lemberger v Khan, 18 AD3d 447, 447-448 [2005]).

2017Contrary to the defendant’s contention, under these circumstances, the Supreme Court properly concluded that the due diligence requirement was satisfied (see JP Morgan Chase Bank, N.A. v Baldi, 128 AD3d at 778 ; Wells Fargo Bank, N.A. v Cherot, 102 AD3d at 769 ; Lopez v DePietro, 82 AD3d 715 [2011]; JPMorgan Chase Bank, N.A. v Szajna, 72 AD3d 902 [2010]; County of Nassau v Gallagher, 43 AD3d 972, 973-974 [2007]).

2025Here, notwithstanding the plaintiff's reliance on the defendant's address as stated at the hearing, the Supreme Court properly determined that the plaintiff's attempts to serve the defendant did not satisfy the due diligence requirement of CPLR 308(4) ( see Coley v Gonzalez , 170 AD3d 1107 , 1108; County of Nassau v Letosky , 34 AD3d 414, 415 ; cf. Wilmington Trust Co. v Gewirtz , 193 AD3d 1110 ).

2008This Court has repeatedly emphasized that “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 AD2d 355, 355 [2000]; see County of Nassau v Letosky, 34 AD3d 414, 415 [2006]; O’Connell v Post, 27 AD3d 630, 631 [2006]; Lemberger v Khan, 18 AD3d 447 [2005]; see generally Estate of Waterman v Jones, 46 AD3d 63 [2007]).

2015“The determination of whether the People have exercised due diligence in locating a person is a mixed question of law and fact” (People v Grey, 259 AD2d 246, 248 [1999], lv denied 94 NY2d 880 [2000] [citation omitted]), and “[w]hile minimal attempts to locate a defendant and secure his [or her] presence in court will not satisfy the due diligence standard, the police are not obliged to search for a defendant indefinitely as long as they exhaust all reasonable investigative leads as to his [or her] whereabouts” (People v Delaronde, 201 AD2d 846, 847-848 [1994]; accord People v Petrianni, 24 AD3

2005“While minimal attempts to locate a defendant and secure his [or her] presence in court will not satisfy the due diligence standard, the police are not obliged to search for a defendant indefinitely as long as they exhaust all reasonable investigative leads as to his [or her] whereabouts” (People v Delaronde, 201 AD2d 846, 847-848 [1994]; see People v Marrin, 187 AD2d 284, 286 [1992], lv denied 81 NY2d 843 [1993]).

2009“This Court has repeatedly emphasized that ‘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’ ” (McSorley v Spear, 50 AD3d 652, 653 [2008], quoting Gurevitch v Goodman, 269 AD2d 355, 355 [2000]; see Silher v Stein, 287 AD2d 494 [2001]; Moran v Harting, 212 AD2d 517 [1995]).

2006The 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 (see, Moran v Harting, 212 AD2d 517 ; Walker v Manning, 209 AD2d 691 ; McNeely v Harrison, 208 AD2d 909 ; Scott v Knoblock, 204 AD2d 299 ).” In accordance with the decision in Gurevitch, this court distinguishes the Appellate Division decision in Johnson v Waters ( 291 AD2d 481 [2d Dept 2002]), in which the Court reversed the Supreme Court’s denial of plaintiffs motion pursuant to CPLR 3215 (a) for leave to enter judgment against

1995The due diligence requirement of CPLR 308 (4) should be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received (see, Walker v Manning, 209 AD2d 691 ; McNeely v Harrison, 208 AD2d 909 ; Scott v Knoblock, 204 AD2d 299 ; Kaszovitz v Weiszman, 110 AD2d 117 ).

1994The due diligence requirement of CPLR 308 (4) should be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received (see, Kaszovitz v Weiszman, 110 AD2d 117, 120 ).

2026The due diligence requirement, which "refers to the quality of the efforts made to effect personal service" ( Barnes v City of New York , 70 AD2d 580, 580 [internal quotation marks omitted]), 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" ( Wells Fargo Bank, N.A. v Enitan , 200 AD3d 736, 738 [internal quotation marks omitted]; see Estate of Waterman v Jones , 46 AD3d 63, 66 ).

2007Those three attempts at service, all on weekdays during normal business hours, did not satisfy the due diligence requirement (see Barnes v City of New York, 70 AD2d 580 [1979], affd 51 NY2d 906 [1980]; Earle v Valente, 302 AD2d 353 [2003]; Gantman v Cohen, 209 AD2d 377 [1994]).

1996Although minimal attempts to locate a defendant and secure his presence in court will not satisfy the due diligence standard (CPL 30.30 [4] [c]), the People are not required to search indefinitely for him as long as they exhaust all reasonable investigative leads as to his whereabouts (see, People v Delaronde, 201 AD2d 846 ; People v Marrin, 187 AD2d 284 ; People v Garrett, 171 AD2d 153 ; see generally, People v Torres, 88 NY2d 928 ).

1994While minimal attempts to locate a defendant and secure his presence in court will not satisfy the due diligence standard, the police are not obliged to search for a defendant indefinitely as long as they exhaust all reasonable investigative leads as to his whereabouts (see, People v Marrin, 187 AD2d 284 , lv denied 81 NY2d 843 ; People v Garrett, 171 AD2d 153 , lv denied 79 NY2d 827 ).

2021"There are no rigid standards governing the due diligence requirement for substituted service pursuant to CPLR 308(4)" ( Bank of America, N.A. v Budhan , 171 AD3d 622 , 622 [1st Dept 2019], citing Bank Leumi Trust Co. of N.Y. v Katzen , 192 AD2d 401 [1st Dept 1993]), and plaintiff's process server's successive attempts to serve defendant personally at various times of the day, on different days of the week (a Monday, a Wednesday, and a Friday) satisfied the due diligence requirement of CPLR 308(4) so as to permit nail-and-mail service ( see Hochhauser v Bungeroth , 179 AD2d 431 [1st Dept 1992]

2021"There are no rigid standards governing the due diligence requirement for substituted service pursuant to CPLR 308(4)" ( Bank of America, N.A. v Budhan , 171 AD3d 622 , 622 [1st Dept 2019], citing Bank Leumi Trust Co. of N.Y. v Katzen , 192 AD2d 401 [1st Dept 1993]), and plaintiff's process server's successive attempts to serve defendant personally at various times of the day, on different days of the week (a Monday, a Wednesday, and a Friday) satisfied the due diligence requirement of CPLR 308(4) so as to permit nail-and-mail service ( see Hochhauser v Bungeroth , 179 AD2d 431 [1st Dept 1992]

2008This Court has repeatedly emphasized that “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 AD2d 355, 355 [2000]; see County of Nassau v Letosky, 34 AD3d 414, 415 [2006]; O’Connell v Post, 27 AD3d 630, 631 [2006]; Lemberger v Khan, 18 AD3d 447 [2005]; see generally Estate of Waterman v Jones, 46 AD3d 63 [2007]).

2006Contrary to the plaintiff’s contention, the Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction because of the plaintiffs failure to meet the due diligence requirement for substituted service pur suant to CPLR 308 (4) (see Sanders v Elie, 29 AD3d 773 [2006]; O’Connell v Post, 27 AD3d 630 [2006]).

2019In order to satisfy 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" ( Estate of Waterman v Jones , 46 AD3d 63, 66 [2007]; see Serraro v Staropoli , 94 AD3d 1083, 1085 [2012]).

2017Thus, the due diligence requirement has not been satisfied with respect to service upon Del Secolo and no hearing is warranted on the issue of proper service upon her (see Serraro v Staropoli, 94 AD3d 1083 [2d Dept 2012]; cf. JP Morgan Chase Bank, N.A. v Baldi, 128 AD3d 777 [2d Dept 2015] [finding that service pursuant to CPLR 308 (4) was proper where three visits were made to the appellant’s home and the process server also described in detail his unsuc cessful attempt to obtain an employment address for the appellant]).