Perciav.Cascone

Appellate Division of the Supreme Court of New York, Second DepartmentJan 13, 1986
116 A.D.2d 557 (N.Y. App. Div. 1986)

January 13, 1986

Appeal from the Supreme Court, Richmond County (Kuffner, J.).


Order affirmed, with costs.

After a traverse hearing, it was adjudged that service of the summons and complaint upon defendants, pursuant to CPLR 308 (4), was proper. We agree. The evidence adduced at the traverse hearing established that the process server exercised due diligence in attempting to serve defendants in accordance with the provisions of CPLR 308 (1) and (2) prior to resorting to "nail-and-mail service".

We find that the affidavit, affirmations and documentary proof submitted by plaintiff were sufficient to establish a prima facie entitlement to summary judgment. Although defendants are correct in asserting that summary judgment must be denied to a plaintiff if the motion papers reveal a meritorious unpleaded defense (see, Gem Grywall Corp. v Scialdo Sons, 34 A.D.2d 1063, 1064; Furlo v Cheek, 20 A.D.2d 939, 940), the papers submitted in opposition do not disclose such a defense, nor do they raise triable issues of fact sufficient to defeat plaintiff's motion for summary judgment. Lazer, J.P., Rubin, Kunzeman and Kooper, JJ., concur.