Summary
In Barnes v. City of New York, 51 NY2d 906, 434 NYS2d 991 the Court of Appeals observed that "in determining the question of whether due diligence has been exercised, no rigid rule could properly be prescribed," and it has been also held that "the due diligence requirement refers to the quality of the efforts made to effect personal service, and certainly not to their quantity or frequency" (Friedman v. Telsco, 253 AD2d 846, 678 NYS2d 364 [2nd Dept., 1984], Bernardo v. Barrett, 87 AD2d 832, 449 NYS2d 272 [2nd Dept., 1982]).
Summary of this case from Greenblum v. Quality Estates, LLCOpinion
Argued October 9, 1980
Decided November 11, 1980
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, SALVATORE DE MATTEO, J.
Ronald J. Koerner for appellants.
Steven B. Prystowsky for respondents.
MEMORANDUM.
The question before the court is whether the Appellate Division erred as a matter of law in finding that the "due diligence" requirement of CPLR 308 (subd 4) had not been met. Expressed another way, the question is whether, on the facts before us, there was demonstrated due diligence as a matter of law.
We note in passing that we do not construe the determination at the Appellate Division as having laid down any hard rule of law. Indeed, in determining the question of whether due diligence has been exercised, no rigid rule could properly be prescribed. Viewing this case on its facts, we conclude there was no error of law, and the order should be affirmed, with costs, and the certified question answered in the affirmative.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order affirmed, with costs, and question certified answered in the affirmative in a memorandum.