Opinion
June 24, 1991
Appeal from the Supreme Court, Queens County (Hentel, J.).
Ordered that the appeal from the order dated April 11, 1988, is dismissed; and it is further,
Ordered that the judgment is reversed, on the law and the facts, without costs or disbursements, the order is vacated, the defendants' motion to vacate their default is granted, and the action is dismissed.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
Upon the record before us, the plaintiffs have failed to establish that the defendants were properly served with process. Specifically, the plaintiffs did not prove that the process server exercised due diligence prior to resorting to substituted service or that he properly affixed and mailed copies of the summons and complaint to effectuate service (see, Fattarusso v Levco Am. Improvement Corp., 144 A.D.2d 626; Werner v Schweit, 138 A.D.2d 592). In addition, no evidence was presented that service was ever completed by the filing of proof of service with the clerk of the court (see, CPLR 308). Accordingly, the action is dismissed. Kooper, J.P., Sullivan, Lawrence and Rosenblatt, JJ., concur.