Opinion
September 3, 1987
Appeal from the Supreme Court, Rensselaer County (McDermott, J.).
Supreme Court properly dismissed this proceeding due to petitioner's failure to timely serve the order to show cause and supporting papers pursuant to the terms of the order, which required that service be made upon respondents' attorney on or before July 30, 1987. The affidavits before Supreme Court indicate that the papers were "secured * * * on the front door" of the attorney's residence by a process server at about 11:30 P.M. on July 30, 1987 after another process server had failed to serve the attorney's wife upon attempting service two hours earlier. The failure to deliver process to a person of suitable age and discretion at the dwelling place of the person to be served (see, CPLR 308), where such service could have been made with due diligence, precludes the later use of "affix and mail" service under CPLR 308 (4) (see, Rossetti v DeLaGarza, 117 A.D.2d 793; Weinberg v. Hillbrae Bldrs., 58 A.D.2d 546; Levin v. McGovern, 53 A.D.2d 1042). Accordingly, the judgment should be affirmed.
Judgment affirmed, without costs. Kane, J.P., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.