Albert Wagner Son, Inc. v. Schreiber

Full title: ALBERT WAGNER SON, INC., Respondent, v. LEO SCHREIBER, Appellant

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 20, 1994

210 A.D.2d 143 (N.Y. App. Div. 1994)

621 N.Y.S.2d 15

Opinion

December 20, 1994

Appeal from the Supreme Court, New York County (Burton S. Sherman, J.).

We agree with the Special Referee that the process server's three unsuccessful attempts to gain access to defendant's apartment building, including a visit at 7:00 P.M. when a working person would normally be home, constituted due diligence warranting substituted service pursuant to CPLR 308 (4). After ascertaining that defendant did in fact live in the premises, it was also proper for the process server to affix a copy of the summons and complaint to the interior door of the building's foyer, this being the location where the process server's progress was arrested and thus the "outer bounds" of defendant's actual dwelling place (duPont, Glore Forgan Co. v Chen, 41 N.Y.2d 794, 797).

Concur — Sullivan, J.P., Wallach, Ross, Rubin and Williams, JJ.