Barnes v. City of New York , 416 N.Y.S.2d 52 ( 1979 )

— In a consolidated negligence action to recover damages for personal injuries, plaintiffs appeal from an order of the Supreme Court, Kings County, dated October 20, 1977, which, after a hearing, inter alia, granted defendants Schwartz’ motion to dismiss the complaint against them. Order affirmed, with costs. Defendants Schwartz moved to dismiss the complaint, inter alia, for lack of in personam jurisdiction over them (see CPLR 3211, subd [a], par 8). The facts are not in dispute. A process server attempted to serve a summons on plaintiffs’ behalf upon the Schwartzs at their home on September 5, 1973 at 10:00 a.m., September 6, 1973 at 5:10 p.m., September 7, 1973 at 1:00 p.m. and September 11, 1973 at 8:20 a.m. (Wednesday, Thursday, Friday and Tuesday, respectively); on each occasion he rang the bell, but found no one at home. He inquired of a neighbor and was told that the Schwartzs lived next door but that she could provide him with no information as to their whereabouts. He did not, however, attempt to ascertain the Schwartzs "actual place of business” (see CPLR 308, subd 2). Thereafter, in accordance with the procedure prescribed in CPLR 308 (subd 4) for effecting substituted personal service (i.e., the mailing and nailing provision), the process server affixed two copies of the summons to the door of the Schwartz home and mailed a copy to said home. Defendant Arthur Schwartz testified that they neither received nor saw a copy of the summons. At the time involved both Mr. and Mrs. Schwartz were employed. Special Term found service to be ineffective. We agree. Before a process server may avail himself of the form of service that was utilized in this case, he must exercise due diligence to effect personal service pursuant to CPLR 308 (subd 1 or 2) (see CPLR 308, subd 4; Jones v King, 24 AD2d 430). We think that the process server’s unsuccessful attempts to find the Schwartzs at home when he sought to serve them during normal working hours should have indicated to him that they were working people. Yet, there was no attempt to effect personal service in accordance with CPLR 308 (subd 1 or 2), either at a time when one might have reasonably expected such individuals to be at home, prior to leaving for work or after working hours, or at their place of business. Accordingly, we agree with Special Term’s determination that the facts adduced do not establish that the process server exercised such due diligence as the statute requires to permit the use of substituted service. As Special Term observed, "the due diligence requirement refers to the quality of the efforts made to effect personal service, and certainly not to their quantity or frequency.” Mollen, P. J., Gulotta and Shapiro, JJ., concur.