Summary
finding impracticability after plaintiff made three separate, failed attempts to serve defendant at his last known residence
Summary of this case from United Specialty Ins. Co. v. Table Run Estates Inc.Opinion
October 10, 1995
Appeal from the Supreme Court, Richmond County (Leone, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The court has discretion to direct alternative service of process pursuant to CPLR 308 (5) when it has determined that the methods set forth in CPLR 308 (1), (2), and (4) are "impracticable". The standard for impracticability under CPLR 308 (5) is different from the more stringent one of "due diligence" under CPLR 308 (4). That is, to meet the standard on impracticability does not require satisfying due diligence, or even showing that actual prior attempts to serve a party under each and every method provided in the statute have been undertaken (see, e.g., Tremont Fed. Sav. Loan Assn. v. Ndanusa, 144 A.D.2d 660, 661; see also, Dobkin v. Chapman, 21 N.Y.2d 490; Markoff v. South Nassau Community Hosp., 91 A.D.2d 1064, 1065, affd 61 N.Y.2d 283; Liebeskind v. Liebeskind, 86 A.D.2d 207, 210-211, affd 58 N.Y.2d 858; McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C308:5, at 314-315).
After the plaintiffs made three unsuccessful attempts at three different times on three different weekdays to serve the defendant Earl Lewis at his last known residence address, the court reasonably concluded that service was impracticable under the other relevant sections of CPLR 308 and properly directed alternative service, on Lewis's attorneys, pursuant to CPLR 308 (5). Moreover, though not required to demonstrate due diligence, the plaintiffs' efforts also satisfied that standard (see, e.g., Hochhauser v. Bungeroth, 179 A.D.2d 431). Bracken, J.P., O'Brien, Ritter, Friedmann and Goldstein, JJ., concur.