From Casetext: Smarter Legal Research

Marballie v. Lefrak

Appellate Division of the Supreme Court of New York, Second Department
Feb 28, 1994
201 A.D.2d 707 (N.Y. App. Div. 1994)

Opinion

February 28, 1994

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


Ordered that the order is reversed insofar as appealed from, on the law, with costs, those branches of the motion which are to dismiss the complaint against Ethel Lefrak and Shalimar Leasing Company are denied, and the complaint against them is reinstated.

Two process servers made six attempts to serve the defendant Ethel Lefrak at her residence on various days and at various times. One of these attempts was in the early morning, two were in the evening, and one on a Saturday morning. Additionally, inquiry was made of one of her neighbors in an effort to ascertain Ethel Lefrak's place of employment, if any. When the process servers were unable to effectuate personal service, each server, on separate dates, affixed a copy of the summons and complaint to Ethel Lefrak's residence and mailed another copy to the same address pursuant to CPLR 308 (4).

The six attempts to make service of the summons and complaint upon Ethel Lefrak at her residence at different times and on different days including early morning, evening, and a Saturday, and the inquiries of the defendant's neighbor, were sufficient to constitute due diligence (see, Matos v. Knibbs, 186 A.D.2d 725). The Court notes that Ethel Lefrak made no claim that she was working at the time service was attempted and the record contains no evidence that she was employed (see, Mitchell v. Mendez, 107 A.D.2d 737, 738; cf., DeShong v. Marks, 144 A.D.2d 623).

Under the facts of this case, the resort to substituted service pursuant to CPLR 308 (4) was proper. Moreover, pursuant to CPLR 310 service on Ethel Lefrak constituted service on the defendant Shalimar Leasing Company, which is a partnership.

There are no allegations contesting the facts asserted in the affidavits of the process servers, nor have any other issues of fact been raised which would require a hearing (cf., Skyline Agency v. Ambrose Coppotelli, Inc., 117 A.D.2d 135). Sullivan, J.P., Joy, Friedmann and Goldstein, JJ., concur.


Summaries of

Marballie v. Lefrak

Appellate Division of the Supreme Court of New York, Second Department
Feb 28, 1994
201 A.D.2d 707 (N.Y. App. Div. 1994)
Case details for

Marballie v. Lefrak

Case Details

Full title:KEITH MARBALLIE, Appellant, v. SAMUEL J. LEFRAK et al., Respondents

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

Date published: Feb 28, 1994

Citations

201 A.D.2d 707 (N.Y. App. Div. 1994)
608 N.Y.S.2d 295

Citing Cases

State v. Mappa

isdiction, contending that the attempt to serve him at his residence did not satisfy the "due diligence"…

Maines v. Boulevard

Defendant testified at the traverse hearing that his actual residence was in Shohola, Pennsylvania, and that,…