h the other courts that have addressed the issue, which have consistently held, for more than a century, that service in violation of General Business Law § 13, or its predecessor statute, is void, and personal jurisdiction is not obtained over the party served (see Martin v. Goldstein, 20 App.Div. 203, 205, 46 N.Y.S. 961 ; Tenenbaum v. Setton, 49 Misc.3d 39, 41, 18 N.Y.S.3d 498 [App.Term, 2d Dept., 2d, 11th & 13th Jud.Dists.]; The Chase Manhattan Bank [USA] N.A. v. Schneider, 1988 N.Y. Misc. LEXIS 896 [App.Term, 2d Dept, 9th & 10th Jud.Dists.]; City Natl. Bank, N.A. v. Lake St. 1, LLC, 38 Misc.3d 1224[A], 2013 N.Y. Slip Op. 50244[U], 2013 WL 625527 [Sup.Ct., Orange County] ; Garner v. Doggie Love L.L.C., 2011 N.Y. Slip Op. 30072[U], 2011 WL 197729 [Sup.Ct., Queens County] ; FPTK, LLC v. Paradise Pillows, Inc., 9 Misc.3d 1125[A], 2005 N.Y. Slip Op. 51790[U], 2005 WL 2922515 [Civ.Ct., Kings County] ; Hirsch v. Ben Zvi, 184 Misc.2d 946, 947, 712 N.Y.S.2d 238 [Civ.Ct., Kings County] ; Jewish Ctr. of Baldwin v. Winer, 216 N.Y.S.2d 153 [Sup.Ct., Nassau County] ; but see Matter of Kushner, 200 A.D.2d 1, 2, 613 N.Y.S.2d 363 [assuming but not deciding the issue]; see generally McKinney's Cons. Laws of N.Y., Book 1, Statutes § 75; Matter of Trosk v. Cohen, 262 N.Y. 430, 435–436, 187 N.E. 566 ). Moreover, we hold that the statute applies not only to personal service upon a defendant, but also to the affixation portion of "nail and mail" service pursuant to CPLR 308(4) on the door of a defendant's residence, as occurred here (see Garner v. Doggie Love L.L.C., 2011 N.Y. Slip Op. 30072[U] ; cf. FPTK, LLC v. Paradise Pillows, Inc., 9 Misc.3d 1125[A], 2005 N.Y. Slip Op. 51790[U] ).
court agrees with the other courts that have addressed this issue, which have consistently held that service in violation of General Business Law § 13, or its predecessor statute, is void, and personal jurisdiction is not obtained over the party served (see Martin v. Goldstein, 20 App.Div. 203, 205, 46 N.Y.S. 961; Tenenbaum v. Setton, 49 Misc.3d 39, 41, 18 N.Y.S.3d 498 [App.Term, 2d Dept., 2d, 11th &13th Jud.Dists.]; The Chase Manhattan Bank [USA] N.A. v. Schneider, 1988 N.Y. Misc. LEXIS 896 [App.Term, 2d Dept, 9th &10th Jud.Dists.]; City Natl. Bank, N.A. v. Lake St. 1, LLC, 38 Misc.3d 1224[A], 2013 N.Y. Slip Op. 50244[U], 2013 WL 625527 [Sup.Ct., Orange County]; Garner v. Doggie Love L.L.C., 2011 N.Y. Slip Op. 30072[U], 2011 WL 197729 [Sup.Ct., Queens County]; FPTK, LLC v. Paradise Pillows, Inc., 9 Misc.3d 1125[A], 2005 N.Y. Slip Op. 51790[U], 2005 WL 2922515 [Civ.Ct., Kings County]; Hirsch v. Ben Zvi, 184 Misc.2d 946, 947, 712 N.Y.S.2d 238 [Civ.Ct., Kings County]; Jewish Ctr. of Baldwin v. Winer, 216 N.Y.S.2d 153 [Sup.Ct., Nassau County]; but see Matter of Kushner, 200 A.D.2d 1, 2, 613 N.Y.S.2d 363 [assuming but not deciding the issue]; see generally McKinney's Cons. Laws of N.Y., Book 1, Statutes § 75; Matter of Trosk v. Cohen, 262 N.Y. 430, 435-436, 187 N.E. 566). Moreover, the court finds that the statute applies not only to personal service upon a defendant, but also to the affixation portion of "nail and mail" service pursuant to CPLR 308(4) on the door of a defendant's residence, as occurred here (see Garner v. Doggie Love L.L.C., 2011 N.Y. Slip Op. 30072[U]; cf. FPTK, LLC v. Paradise Pillows, Inc., 9 Misc.3d 1125[A], 2005 N.Y. Slip Op. 51790[U]).
Therefore, service of process on the defendant after sundown on a Friday or on a religious holiday would be defective and would result in the dismissal of this proceeding. (General Business Law § 13; Jewish Ctr. of Baldwin v Winer, 216 NYS2d 153 [Sup Ct, Nassau County 1961]; Martin v Goldstein, 20 App Div 203 [4th Dept 1897].) The date of service of the summons and complaint is disputed.
However, it is respectfully noted that in this divided decision such statement, at best, appears to be dicta, for even though a process server may be guilty of a misdemeanor for making such service, in a malicious manner, on a person who keeps Saturday as a holy time, it does not necessarily follow that the service will be void as against an innocent party plaintiff to the incident; particularly, if to hold such service void would nonsuit the innocent party plaintiff to the action, such as by an expiration of the Statute of Limitations, or where there has been a clear showing of deliberate avoidance of service. In a relatively more recent decision the court in the matter of Jewish Center of Baldwin v Winer (216 N.Y.S.2d 153 [HOGAN, J.]), after citing the Martin v Goldstein decision, and specifically the statement that the prior law (former Penal Law, § 2150) by implication voids such service when made with malicious intent, after holding a hearing, and after taking testimony upheld the service with a finding that the service was not made with malicious intent. Assuming, arguendo, that such manner of service would, by implication of the provisions of section 13 Gen. Bus. of the General Business Law, void the service, it would, nevertheless be incumbent upon the defendant herein to set forth sufficient factual allegations of maliciously procuring service of the defendant on a day that the defendant keeps as a holy day.
And, as heretofore pointed out, a defendant who "uniformly keeps another day of the week as holy time" (not for rest, repose, tranquillity and "togetherness") and who labors on Sunday without interrupting or disturbing "other persons in observing the first day of the week as holy time" (again, not for rest, repose, tranquillity and "togetherness") has "a sufficient defense to a prosecution" (§ 2144). Also, since Sunday service of process is outlawed (Penal Law, § 2148), as a sop for those observing "Saturday as holy time", process upon them subjects the server or the procurer thereof to a misdemeanor charge (Penal Law, § 2150), but only if it is done "maliciously" ( Jewish Center of Baldwin v. Winer, 216 N.Y.S.2d 153). We now come to one of the main provisions of article 192, which the Supreme Court says, might give salvage to these Sunday laws; for if they provide "recreation", "cheerfulness" and "enjoyment" ( McGowan, supra, pp. 449, 450), the statutes' "purpose and effect is not to aid religion".