Opinion
11523 Index 652181/18
05-14-2020
ROC–LAFAYETTE ASSOCIATES, LLC, Plaintiff–Appellant, v. John Benjamin REUTER, Defendant–Respondent.
Sternbach, Lawlor & Rella LLP, New York (Anthony Rella of counsel), for appellant. Bronster LLP, New York (Don Abraham of counsel), for respondent.
Sternbach, Lawlor & Rella LLP, New York (Anthony Rella of counsel), for appellant.
Bronster LLP, New York (Don Abraham of counsel), for respondent.
Friedman, J.P., Gische, Kapnick, Gonza´lez, JJ.
Order, Supreme Court, New York County (Melissa A. Crane, J.), entered April 26, 2019, which denied plaintiff's motion for summary judgment in lieu of complaint and granted defendant's cross motion to dismiss the complaint, unanimously affirmed, without costs.
The record shows that the process server only attempted to effectuate service of process twice at an address which was not defendant's "actual place of business, dwelling place or usual place of abode within the state" ( CPLR 308[4] ). Under the circumstances presented, including that defendant had moved to Mexico almost a year before service was attempted, and that defendant had no contractual obligation to notify plaintiff that his address changed, plaintiff failed to satisfy the due diligence requirement of CPLR 308(4) (see e.g. Feinstein v. Bergner, 48 N.Y.2d 234, 241, 422 N.Y.S.2d 356, 397 N.E.2d 1161 [1979] ).