Opinion
2005-1987 K C.
Decided on December 27, 2007.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered August 1, 2005. The order granted defendant Marie Ford Sasscer's motion to vacate a default judgment as against her.
Order affirmed without costs.
PRESENT: WESTON PATTERSON, J.P., GOLIA and BELEN, JJ.
Plaintiff appeals from an order granting, after a traverse hearing, defendant Marie Ford Sasscer's motion to vacate a default judgment entered against her. The court found that defendant Sasscer was not properly served pursuant to CPLR 308 (4).
Plaintiff asks this Court to reinstate the judgment or, in the alternative, to order defendant Sasscer to serve an answer. For the reasons set forth below, we find that the court below did not acquire personal jurisdiction over defendant Sasscer.
Plaintiff attempted to serve defendant Sasscer by "nail and mail" service pursuant to CPLR 308 (4). Her process server affixed the summons to the door of a residence in Brooklyn on July 16, 2004, after a number of prior attempts to serve defendant Sasscer at that address pursuant to CPLR 308 (1) and (2). The process server subsequently mailed a copy of the summons to the same address. Plaintiff did not establish that the address at which service was attempted was defendant Sasscer's actual place of business, dwelling place or usual place of abode (CPLR 308; see Kurlander v A Big Stam, Corp., 267 AD2d 209, 210). Indeed, plaintiff has effectively conceded that defendant Sasscer moved to Pennsylvania in late 2003. Moreover, plaintiff could not even properly resort to service pursuant to CPLR 308 (4) because she did not first exercise due diligence to determine defendant Sasscer's actual place of business ( see County of Nassau v Letosky, 34 AD3d 414; O'Connell v Post, 27 AD3d 630; Walker v Manning, 209 AD2d 691), dwelling place or usual place of abode ( see Kurlander, 267 AD2d at 210) in order to attempt to serve her pursuant to CPLR 308 (1) or (2). 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).
Plaintiff's argument that her "nail and mail" service was properly executed, as the summons was affixed to the door of defendant Sasscer's last known residence, is without merit. In Feinstein v Bergner ( 48 NY2d 234, 239), the Court of Appeals stated the following:
"The nail and mail' provision of the CPLR permits a plaintiff to mail duplicate process to the defendant at his last known residence, but clearly requires that the nailing' be done at the defendant's actual' place of business, dwelling place or usual place of abode. While there may be some question as to whether there is a distinction between dwelling place' and usual place of abode', there has never been any serious doubt that neither term may be equated with the last known residence' of the defendant"
( see also Gibson v Salvatore, 102 AD2d 861, 862).
Plaintiff's contention that defendant Sasscer knew about the summons and that she was hiding her address so as to avoid being served is unavailing. "[P]otential defendants ordinarily have no obligation to keep potential plaintiffs [apprised] of their whereabouts" ( Chiari v D'Angelo, 123 AD2d 655, 655). There was no evidence before the lower court that defendant Sasscer was affirmatively trying to hide her whereabouts from plaintiff in order to avoid being sued ( see European Am. Bank Trust Co. v Serota, 242 AD2d 363). Furthermore, actual notice of a summons will not cure improper service and confer personal jurisdiction ( Gibson, 102 AD2d at 862; McMullen v Arnone, 79 AD2d 496, 499).
We note that since defendant Sasscer was not properly served, the court never acquired personal jurisdiction over her. Furthermore, defendant cannot be obligated to answer or appear, as the requirement to appear arises only upon service of a summons (CCA 402).
Weston Patterson, J.P., Golia and Belen, JJ., concur.