Matter of Robinson, NYLJ September 03, 2020 , Date filed: 2020-08-25, Court: Supreme Court, Kings, Judge: Justice Leon Ruchelsman, Case Number: 100226/2019:
“It is well settled that pursuant to CPLR §308(4) commonly known as ‘nail and mail’ service, the plaintiff must exercise due diligence to demonstrate that personal service or service upon someone of suitable age and discretion could not be made. Thus, this method of service is not available if someone is present at the location where service is attempted (Kambour v. Farrar, 188 AD2d 719, 590 NYS2d 586 [3rd Dept., 1992]). Therefore, in Bossuk v. Steinberg, 58 NY2d 916, 460 NYS2d 509 [1983] the Court of Appeals held that where a person of suitable age and discretion (and surely the defendant herself) refuses to open the door for a process server and “resists” service then service can be effectuated by leaving the summons and complaint outside the door and informing the individual the summons has been left there. Further, in Ramirez v. Romualdo, 25 AD3d 680, 808 NYS2d 733 [2d Dept., 2006] the court held that where an individual answers the door but refuses to accept service then the process server may not resort to service pursuant to CPLR §308(4) service. The court explained that “the affidavit of service indicated that the process server spoke to a person of suitable age and discretion at the defendant’s actual dwelling place when he attempted service. Since service pursuant to CPLR 308(2) could have been made with due diligence, the process server’s resort to ‘nail and mail’ service pursuant to CPLR 308(4) was improper and did not confer personal jurisdiction over the defendant” (id).
In this case the process server’s affidavit states that on his first attempt “there was no answer. On my second attempt I spoke with a woman from behind the apartment door who identified herself as Rose Robinson a/k/a Rose Fleary. She refused to open the door to accept service of the documents” (see, Affidavit of Nnamdi Erskine, Paragraph #10, dated June 22, 2018). Consequently, in order to effectuate service, the process server was required to leave the papers in the vicinity and effectuate service pursuant to CPLR §308(1). Returning another date and time and serving the summons and complaint utilizing nail and mail service was improper and did not confer any service upon Rose Robinson (see, Plycon Transportation Group LLC v. Kirschenbaum, 36 Misc3d 1232(A), 959 NYS2d 91 [Supreme Court Suffolk County, 2012]).
Consequently, there was no service upon Rose Robinson. The court need not examine any substantive issues regarding knowledge of incapacity or the status of the buyer as a bona fide purchaser since there was never jurisdiction conferred upon Rose Robinson. Therefore the motions seeking to vacate’ the foreclosure and vacate the sale are granted.”