Opinion
November 25, 1985
Appeal from the Supreme Court, Westchester County (Donovan, J., Delaney, J.).
Order dated November 2, 1983 and orders entered February 23, 1984, July 3, 1984 and July 30, 1984 reversed, and order entered May 31, 1984 reversed, insofar as appealed from, on the law, without costs or disbursements, and proceeding dismissed.
Appeal from the order entered July 26, 1984 dismissed as academic, without costs or disbursements, in light of our determinations on the appeals from the other orders.
Plaintiff commenced this supplementary proceeding to enforce a money judgment of the Justice Court of the Village of Scarsdale by serving a subpoena with restraining notice upon defendant, pursuant to the nail-and-mail provisions of CPLR 308 (4), at 51 Palmer Avenue in Scarsdale. The subpoena, with restraining notice, was issued from the Supreme Court, Westchester County, pursuant to CPLR 5221 (b), and directed defendant, inter alia, to appear for an examination as a judgment debtor at the office of plaintiff's attorney. Unknown to plaintiff, defendant had previously moved from the Scarsdale address to 420 East 64th Street, in New York County. Defendant failed to appear for the examination. Thereafter, by order to show cause, plaintiff made his first motion in the Supreme Court for an order adjudging defendant in civil contempt and punishing him for his failure to comply with the subpoena. The motion papers were sent, by certified mail, to the Scarsdale address.
In this supplementary proceeding, the Supreme Court, Westchester County, never acquired personal jurisdiction over the defendant to adjudge him in civil contempt and to impose punishment. The subpoena at issue was required to be served in the same manner as a summons (CPLR 2303). Here, the purported service of the subpoena, with restraining notice, pursuant to the nail-and-mail provisions of CPLR 308 (4), was ineffective for two reasons. First, the subpoena with restraining notice was affixed to the door of defendant's last known residence rather than his actual abode (see, Feinstein v Bergner, 48 N.Y.2d 234). Second, the process server did not first attempt, with "due diligence", to effect personal service in accordance with the provision of CPLR 308 (1) or (2) before resorting to substituted service under CPLR 308 (4). The process server's affidavits merely recite three unsuccessful attempts at service on weekdays during normal working hours at the address of defendant's last known residence, and an inquiry made to a neighbor, who purportedly stated that defendant lived at that address (see, Kaszovitz v Weiszman, 110 A.D.2d 117; Barnes v City of New York, 70 A.D.2d 580, affd 51 N.Y.2d 906; Carfora v Pesiri, 89 A.D.2d 237).
Since plaintiff failed to serve a subpoena in accordance with the mandates of CPLR 304 and never commenced a special proceeding in the Supreme Court to adjudge defendant in civil contempt in accordance with CPLR 403 (c), (d) (see, Federal Deposit Ins. Corp. v Richman, 98 A.D.2d 790), the Supreme Court never acquired personal jurisdiction over the defendant. Accordingly, the proceeding must be dismissed. Mollen, P.J., Bracken, Niehoff and Rubin, JJ., concur.