Opinion
2015-10-9
In the Matter of Paul KADER, II, Petitioner–Respondent, v. Megan L. KADER, Respondent–Appellant.
Muscato, Dimillo & Vona, LLP, Lockport (Brian J. Hutchison of Counsel), for Respondent–Appellant. Melissa A. Cavagnaro, Attorney for the Child, Buffalo.
Muscato, Dimillo & Vona, LLP, Lockport (Brian J. Hutchison of Counsel), for Respondent–Appellant. Melissa A. Cavagnaro, Attorney for the Child, Buffalo.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, WHALEN, AND DeJOSEPH, JJ.
MEMORANDUM:
In this proceeding pursuant to Family Court Act article 6, respondent mother appeals from a corrected order that denied her motion seeking to vacate a default order granting petitioner father sole custody of their child, and to dismiss the father's petition for custody. After the parents' relationship ended in December 2012, the mother and the child resided with the child's maternal grandmother. In February 2013, the mother ceased communicating with the father and denied him visitation with the child, and the father filed a petition for custody in April 2013. During business hours on three weekdays in May 2013, the process server unsuccessfully attempted to serve process on the mother at the grandmother's apartment. After the third attempt, the process server used the “nail and mail” method of service at the grandmother's apartment. The grandmother testified at a hearing, however, that the mother had moved to Maryland in March 2013. The mother and the Attorney for the Child contend that Family Court erred in denying the mother's motion inasmuch as the court did not obtain personal jurisdiction over her by the “nail and mail” method of service because the father failed to meet the due diligence requirement of CPLR 308(4). We agree, and we therefore reverse the corrected order, vacate the default order, and dismiss the petition for custody.
CPLR 308(4) allows the “nail and mail” method of service only “when service pursuant to CPLR 308(1) and (2) cannot be made with due diligence” (Austin v. Tri–County Mem. Hosp., 39 A.D.3d 1223, 1224, 834 N.Y.S.2d 419; see Interboro Ins. Co. v. Tahir, 129 A.D.3d 1687, 1688–1689, 12 N.Y.S.3d 688). “[A]lthough a process server's affidavit of service ordinarily constitutes prima facie evidence of proper service, here the process server's affidavit submitted by plaintiff fails to demonstrate the requisite due diligence” (Interboro Ins. Co., 129 A.D.3d at 1688–1689, 12 N.Y.S.3d 688; see D'Alesandro v. Many, 137 A.D.2d 484, 484, 523 N.Y.S.2d 985; see generally Matter of El Greco Socy. of Visual Arts, Inc. v. Diamantidis, 47 A.D.3d 929, 929–930, 852 N.Y.S.2d 165). Specifically, the affidavit of service did not contain any averment whether the process server had made an attempt to effectuate service at the mother's actual “dwelling place or usual place of abode” (CPLR 308[4] ), or whether he had made genuine inquiries to ascertain the mother's actual residence or place of employment ( see Prudence v. Wright, 94 A.D.3d 1073, 1074, 943 N.Y.S.2d 185; Earle v. Valente, 302 A.D.2d 353, 353–354, 754 N.Y.S.2d 364). While the process server attempted to serve the mother on Friday, May 10, 2013, at 11:50 a.m., Monday, May 13, 2013, at 9:30 a.m., and Tuesday, May 14, 2013, at 1:30 p.m., “[t]hose three attempts at service, all on weekdays during normal business hours, did not satisfy the due diligence requirement [of CPLR 308(4) ]” (Austin, 39 A.D.3d at 1224, 834 N.Y.S.2d 419).
In light of our determination, we do not reach the mother's alternative contention.
It is hereby ORDERED that the corrected order so appealed from is unanimously reversed on the law without costs, the default order is vacated, and the petition is dismissed.