Castro v. Castro

Summary

The Appellate Division, Second Department reversed an order denying John C. Castro's motion to vacate a default judgment for lack of jurisdiction. The court held that the plaintiff failed to demonstrate due diligence before using affix-and-mail service under CPLR 308(4), vacated the default judgment and related order, and remitted the matter for consideration of the plaintiff's motion to extend the time for service and, if necessary, the defendant's jurisdictional dismissal motion.

Holdings

1. Service by affixing and mailing under CPLR 308(4) was invalid because the plaintiff failed to demonstrate that the process server exercised due diligence before resorting to that method.
2. The defendant's CPLR 5015(a)(4) motion to vacate the December 16, 2019 order and judgment was granted because the defective service did not establish personal jurisdiction.

Questions Presented

1. Whether service under CPLR 308(4) was valid when the process server made two attempts at the defendant's residence but did not make genuine inquiries about the defendant's whereabouts or place of employment.
2. Whether the default order and judgment had to be vacated for lack of personal jurisdiction under CPLR 5015(a)(4).
3. What proceedings were required concerning the plaintiff's CPLR 306-b cross-motion to extend the time for service and the defendant's unresolved CPLR 3211(a)(8) jurisdictional motion.

Disposition

reversed_and_remanded