Tuesday, June 22, 2010

Federal Natl. Mtge. Assn. v. Rogers Realty & Mgt. Corp., 2010 NY Slip Op 51072(U)(Kings County 2010)

By Kate Cavallaro
     Law Offices of Robert E. Brown, P.C.

In Federal Natl. Mtge. Assn. v. Rogers Realty & Mgt. Corp., 2010 NY Slip Op 51072(U)(Kings County 2010), the Supreme Court, Kings County, denied plaintiff’s motion for a default judgment insofar against defendants, Rogers Realty & Management Corp., in a foreclosure action. The defendants’ cross motions to dismiss plaintiff’s complaint pursuant to CPLR 3211(a)(8) and vacate their default pursuant to CPLR 317 or CPLR 5015 (a) (1) was granted to the extent that the complaint against individual defendant Abraham Hoffman is dismissed and denied. According to the plaintiff’s affidavits of service, service was purportedly made on Rogers Realty via the Secretary of State and upon individual defendant Hoffman by affixation and mailing. The Court notes that while CPLR 308(4) authorizes nail and mail service as to defendant Hoffman, it may only be utilized where personal service under CPLR 308(4) cannot be made with due diligence. The question in the instant matter revolves around the issue of what constituted due diligence, the existence of due diligence and whether the plaintiffs exercised it in attempting personal service. The court notes the “due diligence” is determined on a case by case basis, “focusing not on the quantity of the attempts at personal delivery, but on their quality.” Gurevitch v. Goodman, 269 AD2d 355 (2000). In the instant matter the affidavits cite six attempts to serve defendant Hoffman but that four of the six attempts were made at a time and date when it would be reasonable to assume that the defendant would be at work or traveling to and from work, and therefore not present at the residence where service was attempted. The Court further notes, (while there was discussion about the reporting of changes in business addresses were reported) that there “is no indication that the process server made any ‘effort to determine [Mr. Hoffman’s] business address in order to attempt personal service thereat pursuant to CPLR 308(2) before resorting to nail and mail service’.” Based on these affidavits of service and relevant case law the Court determined that Defendant Hoffman made a prima facie showing that there was a lack of “due diligence,” ineffective service, and a lack of jurisdiction over him. The Court found that “due diligence” on the part of the plaintiff to be insufficient as a matter of law, and therefore denied plaintiff’s request for a default judgment with respect to individual defendant Hoffman.

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