If the Service Was Poor, You’ll Have to Do More – How Much Diligence Is Due for Affix and Mail Service?

November 02, 2023

The burden of establishing personal jurisdiction over a defendant rests with the plaintiff. Service of process is a necessary component of jurisdiction, and it is not complete until proof of service is filed. Ordinarily, defective service of process is not a jurisdictional defect and does not warrant dismissal. But when it comes to “affix and mail” service under CPLR § 308(4), the statutory requirement of “due diligence” must be strictly observed, otherwise dismissal may result.  A recent decision from Manhattan Commercial Division Justice Robert Reed in Arena Special Opportunities Fund, LLC v McDermott discusses just how much diligence is required.

Background

Sections 308(1) and (2) of the CPLR establish standard methods of personal service. Under section 308(1), the summons may be served on the defendant, directly, anywhere “within the state.” Under section 308(2), the summons may be left with a person of suitable age and discretion at the defendant’s “actual place of business, dwelling place or usual place of abode” and subsequently mailed to the defendant’s “last known residence” or “actual place of business.”

Section 308(4) of the CPLR provides for situations “where service under paragraphs one and two cannot be made with due diligence.” The due diligence requirement may be satisfied by “a few visits on different occasions and at different times to the defendant’s residence or place of business when the defendant could reasonably be expected to be found at such location at those times” (Mid-Island Mortgage Corp. v. Drapal, 175 AD3d 1289, 1290 [2d Dept 2019]).

Failure to exercise due diligence, however, may result in dismissal under CPLR § 3211(a)(8) for lack of personal jurisdiction. For example, in Mid-Island Mortgage Corp., the process server attempted to serve the defendant at his home four times despite knowing that the defendant was away on active military service. Thus, the attempts were not made when the defendant “could reasonably be expected to be found” at home, and the complaint was dismissed.

Analysis

In Arena Special Opportunities Fund, the plaintiffs commenced an action to recover damages from the defendant stemming from his failure to honor a personal guarantee of payment obligations under a loan agreement. The defendant moved to dismiss the action for improper service. The process server had made four attempts to personally serve the defendant at his last known residential address at 6712 Sycamore Glen Dr. But the residence was located within a gated community, which prevented the process server from accessing it. Consequently, the process server attempted to serve the papers “by posting the documents in a conspicuous place at the premises” and mailing them to the residence.

The plaintiffs did not confirm that the defendant still lived at 6712 Sycamore Glen Dr. and offered no facts indicating that they tried to verify his address. The defendant claimed he no longer lived at 6712 Sycamore Glen Dr., and that a title search would have revealed as much. The plaintiffs countered that it was reasonable to attempt service at that address because defendant had listed it as his residence on the loan agreement and personal guaranty, which were the subject of the action.

The court held that did not amount to due diligence under CPLR § 308(4). The plaintiffs did not attempt to serve the defendant at his place of business, though they knew its exact location. They did not try to ascertain the defendant’s then-current address or confirm that he still lived at the address where they attempted service. Although the defendant did list the Sycamore Glen address in connection with the loan agreement, those documents were more than a year old and the plaintiffs could have reasonably anticipated that the defendant might change his residence within that time.

Accordingly, the attempted service was defective as a matter of law, and the court granted the defendant’s motion to dismiss the action.

Conclusion

The decision in Arena Special Opportunities Fund reaffirms the importance of ascertaining a defendant’s whereabouts. The due diligence component of CPLR § 308(4) will not be satisfied by “affix and mail” service—regardless of how many attempts at service are made—unless the plaintiff has genuinely inquired as to the defendant’s actual dwelling place and actual place of business.