CPLR § 308 Personal service upon a natural person
CPLR R. 3211(a)(8) the court has not jurisdiction of the person of the defendant
(e) Number, time and waiver of objections; motion to plead over
Schwarz v Margie, 2009 NY Slip Op 03890 (App. Div., 2nd, 2009)
The summons with notice in the instant matter purportedly was served
upon the appellant, Thomas Margie, by the "nail and mail" method
pursuant to CPLR 308(4). However, the record demonstrates that the
service was deficient because the plaintiff failed "to show the
existence of even a factual question as to whether the process server
exercised the due diligence necessary to be [*2]permitted to serve someone under CPLR 308(4)" (Leviton v Unger, 56 AD3d 731,
732). Accordingly, the Supreme Court should not have directed a hearing
to determine the validity of service upon the appellant but should have
found the proof of due diligence to be insufficient as a matter of law (id.).
Accordingly, the appellant's motion pursuant to CPLR 308 and CPLR
3211(a)(8), in effect, to dismiss the complaint and any and all cross
claims insofar as asserted against him should have been granted (id.; McSorley v Spear, 50 AD3d 652; Estate of Waterman v Jones, 46 AD3d 63, 66-67; Earle v Valente, 302 AD2d 353, 353-354; Moran v Harting, 212 AD2d 517, 518).The plaintiff's remaining contentions are without merit, have
been rendered academic in light of our determination, or involve matter
that is dehors the record and not properly before this Court (see Mendoza v Plaza Homes, LLC, 55 AD3d 692, 693).
Reyes v Albertson, 2009 NY Slip Op 04043 (App. Div., 2nd, 2009)
In an action to recover damages for personal injuries, the plaintiff
appeals from an order of the Supreme Court, Orange County (Giacomo,
J.), dated March 24, 2008, which granted the defendant's motion
pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of
personal jurisdiction, and denied his cross motion, inter alia, for an
extension of time to serve the defendant and for an order authorizing
expedient service.ORDERED that the order is modified, on the law, (1) by deleting
the provision thereof granting the motion and substituting therefor a
provision denying the motion as untimely, and (2) by deleting the
provision thereof denying the cross motion on the merits and
substituting therefor a provision denying the cross motion as academic;
as so modified, the order is affirmed, with costs payable to the
plaintiff.Pursuant to CPLR 3211(e), the defendant was required to move to
dismiss the complaint for lack of proper service within 60 days
following the service of the answer, unless an extension of time was
warranted on the ground of undue hardship. Contrary to the defendant's
contention, the motion to dismiss the complaint, made approximately 106
days after service of the answer, raising the defense of lack of
personal jurisdiction, was untimely and was not supported by an
adequate showing of undue hardship which prevented the making of the
motion within the requisite statutory period (see e.g. Woleben v Sutaria, 34 AD3d 1295; B.N. Realty Assoc. v Lichtenstein, 21 AD3d 793; State Farm Fire & Cas. Co. v Firmstone, 18 AD3d 900; Worldcom, Inc. v Dialing Loving Care, 269 [*2]AD2d 159; Vandemark v Jaeger, 267 AD2d 672). Accordingly, the jurisdictional objection was waived, and the court should have denied the motion (see Dimond v Verdon, 5 AD3d 718; Thompson v Cuadrado, 277 AD2d 151; Greenpoint Bank v Schiffer, 266 AD2d 262, cert denied 531 US 896; Wade v Byung Yang Kim,
250 AD2d 323). The defendant's contention that the service of the
answer was unauthorized is improperly raised for the first time on
appeal (see e.g. Gallagher v Gallagher, 51 AD3d 718; Dudla v Dudla, 304 AD2d 1009; Orellano v Samples Tire Equip. & Supply Corp., 110 AD2d 757).
The bold is mine.
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