Summary
In Hochhauser v. Bungeroth, 179 A.D.2d 431, 578 N.Y.S.2d 170 (1st Dep't 1992), it ruled that three attempts to serve defendant at home at various times when defendant would reasonably be expected to be found were sufficient to establish "due diligence" so as to permit the use of affix and mail service pursuant to CPLR § 308, making no reference to any additional requirement of showing attempted service at defendant's place of business.
Summary of this case from Sartor v. Utica Taxi Center, Inc.Opinion
January 14, 1992
Appeal from the Supreme Court, New York County (Edward J. Greenfield, J.).
No rigid rule has been prescribed for determining whether "due diligence" has been exercised in attempting to effect service so as to permit the use of substituted service pursuant to CPLR 308 (4) (Barnes v. City of New York, 51 N.Y.2d 906, 907). The three attempts to serve defendant at his home made during various hours of the day were sufficient to establish "due diligence" so as to permit the use of substituted service (supra; see, Moss v Corwin, 154 A.D.2d 443, 444). Further, we note defendant failed to preserve this issue for our review (Recovery Consultants v Shih-Hsieh, 141 A.D.2d 272).
There is no merit to defendant's claim that plaintiff failed to enter the judgment within one year after his default, requiring dismissal of the claim as abandoned, since the default did not occur upon date of service, but, at the minimum, 30 days thereafter, pursuant to CPLR 308 (4) and 320 (a) (Insurance Co. v. Reifler, 45 A.D.2d 488).
Concur — Milonas, J.P., Rosenberger, Kupferman, Ross and Asch, JJ.