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Johnson v. Waters

Appellate Division of the Supreme Court of New York, Second Department
Feb 19, 2002
291 A.D.2d 481 (N.Y. App. Div. 2002)

Summary

emphasizing an attempt at service on a Saturday in finding due diligence

Summary of this case from Kopec v. GMG Construction Corp.

Opinion

2001-04585

Submitted January 16, 2002.

February 19, 2002.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Schmidt, J.), dated April 20, 1998, which denied his motion pursuant to CPLR 3215 for leave to enter a judgment against the defendant upon his failure to timely appear or answer.

Richard K. Hershman, PLLC, New York, N.Y. (Euisun Pyun of counsel), for appellant.

Before: DAVID S. RITTER, J.P., SANDRA J. FEUERSTEIN, CORNELIUS J. O'BRIEN, HOWARD MILLER, SANDRA L. TOWNES, JJ.


ORDERED that the order is reversed, on the law, with costs, and the motion is granted.

A process server made three attempts to serve the defendant at his residence. One of those attempts was during normal working hours, one on Wednesday evening, and one a Saturday morning. When the process server was unable to effectuate personal service, she affixed a copy of the summons and complaint to the defendant's apartment and mailed another copy to the same address pursuant to CPLR 308(4).

The three attempts to make service of the summons and complaint upon the defendant at his residence at different times and on different days, including a Saturday, were sufficient to constitute due diligence (see, Matos v. Knibbs, 186 A.D.2d 725). Since there was no indication that he worked on Saturdays, there was no showing of any other reasonable means whereby the chances of successful personal service could have been significantly increased (see, Matos v. Knibbs, supra).

Accordingly, the process server properly resorted to service of process pursuant to CPLR 308(4). Since the defendant failed to timely appear or interpose an answer, he is in default and the plaintiff's motion should have been granted.

RITTER, J.P., FEUERSTEIN, O'BRIEN, H. MILLER and TOWNES, JJ., concur.


Summaries of

Johnson v. Waters

Appellate Division of the Supreme Court of New York, Second Department
Feb 19, 2002
291 A.D.2d 481 (N.Y. App. Div. 2002)

emphasizing an attempt at service on a Saturday in finding due diligence

Summary of this case from Kopec v. GMG Construction Corp.

In Johnson, the Second Department found that plaintiff acted with due diligence because the process server had made, on different days and at varying times, three attempts to serve the defendant personally at his residence; the first attempt was during normal working hours, the second was on a Wednesday evening, and the last on a Saturday morning.

Summary of this case from Faculty Practice v. Guarneri

In Johnson v. Waters, 291 AD2d 481, (2nd Dept 2002), a process server made three attempts to serve a defendant at his residence, one during normal working hours, then on a Wednesday evening, and then on a Saturday morning.

Summary of this case from GHEE v. WASHINGTON MUT. BANK F.A.
Case details for

Johnson v. Waters

Case Details

Full title:FRANK JOHNSON, appellant, v. JAMES WATERS, respondent

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

Date published: Feb 19, 2002

Citations

291 A.D.2d 481 (N.Y. App. Div. 2002)
738 N.Y.S.2d 369

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