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Roman v. Guzzardo

Appellate Division of the Supreme Court of New York, Second Department
Nov 29, 1993
198 A.D.2d 489 (N.Y. App. Div. 1993)

Summary

Holding that the plaintiff failed to demonstrate service pursuant to CPLR Section 308 where "the process server never told the person who purportedly refused to open the door that he was there to serve legal papers."

Summary of this case from Tooker v. Guerrera

Opinion

November 29, 1993

Appeal from the Supreme Court, Kings County (Held, J.).


Ordered that the order is affirmed, with costs.

We agree with the court's conclusion that the plaintiff's process server failed, as a matter of law, to exercise due diligence in attempting to effectuate personal service upon the defendant (see, CPLR 308; Pizzolo v Monaco, 186 A.D.2d 727). Two of the three attempts to effectuate personal service at the defendant's residence occurred on weekdays during normal business hours. Although the defendant's place of business was readily ascertainable from the complaint itself, no effort was made to serve him, or a person of suitable age and discretion, at that location (cf., Matos v Knibbs, 186 A.D.2d 725).

The plaintiff's further contention that personal service was made upon a person of suitable age and discretion at the defendant's residence, in accordance with CPLR 308 (2), is raised for the first time here. In any event, the contention is without merit, because the process server never told the person who purportedly refused to open the door that he was there to serve legal papers (see, Bossuk v Steinberg, 58 N.Y.2d 916; Spector v Berman, 119 A.D.2d 565).

We have considered the plaintiff's remaining contentions and find them to be without merit. Thompson, J.P., Sullivan, Rosenblatt and Ritter, JJ., concur.


Summaries of

Roman v. Guzzardo

Appellate Division of the Supreme Court of New York, Second Department
Nov 29, 1993
198 A.D.2d 489 (N.Y. App. Div. 1993)

Holding that the plaintiff failed to demonstrate service pursuant to CPLR Section 308 where "the process server never told the person who purportedly refused to open the door that he was there to serve legal papers."

Summary of this case from Tooker v. Guerrera
Case details for

Roman v. Guzzardo

Case Details

Full title:EFRAIN ROMAN, Appellant, v. CHRISTOPHER GUZZARDO, Respondent

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

Date published: Nov 29, 1993

Citations

198 A.D.2d 489 (N.Y. App. Div. 1993)
604 N.Y.S.2d 183

Citing Cases

Tooker v. Guerrera

) Cf. Roman v. Guzzardo, 198 A.D.2d 489, 489, 604 N.Y.S.2d 183, 184 (2d Dep't 1993) (Holding that the…

Simonovskaya v. Olivo

"The due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a…