USPS Change‑of‑Address as Due Diligence: Second Department Clarifies CPLR 308(4) “Affix-and-Mail” and the Burden to Rebut Proper Service

Case: PNMAC Mortgage Opportunity Fund Investors, LLC v. Noushad (2025 NY Slip Op 04195, Appellate Division, Second Department, July 16, 2025)

Introduction

This mortgage foreclosure appeal presents a recurring but consequential question in New York practice: when may a plaintiff resort to CPLR 308(4)’s “affix‑and‑mail” method of service, and what evidentiary showing is necessary to sustain it against a defendant’s jurisdictional challenge?

PNMAC Mortgage Opportunity Fund Investors, LLC commenced foreclosure proceedings in 2014 against, among others, defendant Md Abu Noushad. After earlier service was found invalid and prior default orders were vacated, the trial court extended PNMAC’s time to serve under CPLR 306‑b. PNMAC then undertook renewed efforts to locate and serve Noushad in 2020, including extensive online searches, a formal United States Postal Service (USPS) Change‑of‑Address inquiry, and multiple in‑person attempts before resorting to affix‑and‑mail at an address returned by USPS (559 Bristol Street, Brooklyn).

Noushad opposed, insisting he had no connection to the Bristol Street address and moved to dismiss for lack of personal jurisdiction under CPLR 3211(a)(8). The Supreme Court, Kings County, deemed service valid and denied dismissal. The Appellate Division affirmed, holding that PNMAC satisfied “due diligence” under CPLR 308(4) and that Noushad’s bare denial did not rebut the presumption of proper service established by the process server’s affidavit.

Summary of the Judgment

• The Second Department affirmed the order deeming service valid under CPLR 308(4) and denying the defendant’s CPLR 3211(a)(8) motion to dismiss for lack of personal jurisdiction.
• “Due diligence” was satisfied where PNMAC:
  • Conducted approximately 50 searches to ascertain Noushad’s address and employment;
  • Obtained a USPS response identifying 559 Bristol Street, Brooklyn, as Noushad’s “new address or boxholder name and street address” in response to a legal process inquiry; and
  • Made three attempts at different days and times to personally serve at that address before resorting to affix‑and‑mail.
• The defendant’s affidavit—stating only that he never resided at the Bristol Street address—was insufficient to rebut the presumption of proper service because he provided no documentary proof or affidavit from an occupant of that address.
• The court emphasized that the USPS response indicated a “new address,” distinguishing it from a mere “possible, last known address.”
• Result: Service was valid; the action proceeds against Noushad.

Analysis

Precedents Cited and Their Influence

• Feinstein v Bergner, 48 NY2d 234 (1979):
  Foundational authority for CPLR 308(4). It requires affixation at the defendant’s “actual place of business, dwelling place or usual place of abode.” Service is ineffective as a matter of law if affixation occurs at the wrong location. In Noushad, this principle framed the defendant’s core argument: that 559 Bristol Street was not his actual residence or business.
• Estate of Waterman v Jones, 46 AD3d 63 (2d Dept 2007):
  Defines “due diligence” (not statutorily defined) as typically satisfied by “a few visits on different occasions and at different times” when the defendant could reasonably be expected to be present. The Second Department repeatedly relied on Waterman’s pragmatic standard. PNMAC’s three varied attempts—plus investigative efforts—met this threshold.
• LaSalle Bank N.A. v Hudson, 139 AD3d 811 (2d Dept 2016); Deutsche Bank Natl. Trust Co. v White, 110 AD3d 759 (2d Dept 2013); Wells Fargo Bank, NA v Besemer, 131 AD3d 1047 (2d Dept 2015):
  These Second Department cases apply Waterman’s “few visits at different times” framework, reinforcing that multi‑day, multi‑time attempts suffice, particularly in foreclosure contexts. They support the holding that three varied attempts, coupled with investigative steps, constitute due diligence.
• Aurora Loan Servs., LLC v Simon, 216 AD3d 716 (2d Dept):
  Restates the two steps of CPLR 308(4) (affix and mail) and its precondition of due diligence when personal service under CPLR 308(1) or (2) cannot be made. The court cites it to state the governing rule invoked here.
• Encarnacion v Ogunro, 162 AD3d 981 (2d Dept 2018):
  Confirms that affix‑and‑mail fails “as a matter of law” if the affixation address is not the defendant’s actual residence or business. The panel acknowledges this rule but finds that the defendant did not carry his burden to show Bristol Street was not his place under the circumstances.
• Bank of N.Y. Mellon v Lawson, 176 AD3d 1155 (2d Dept 2019); Chichester v Alal‑Amin Grocery & Halal Meat, 100 AD3d 820 (2d Dept 2012):
  Establish that a properly executed process server’s affidavit creates a presumption of proper service; a defendant must rebut it with more than a conclusory denial—typically through documentary evidence (e.g., lease, utility bills, DMV records) or an affidavit from an occupant at the service address. The court explicitly applies this burden‑shifting approach to reject Noushad’s uncorroborated denial.

Legal Reasoning

The court’s reasoning unfolds in two linked steps: (1) whether PNMAC exercised “due diligence” before resorting to CPLR 308(4), and (2) whether the location where process was affixed and mailed qualifies under the statute as the defendant’s actual residence or business.

1) Due diligence prerequisite

• Due diligence is fact‑specific and commonly met by “a few visits” on different days and times (Waterman and progeny). PNMAC satisfied this by:
  • Performing approximately fifty online searches to confirm Noushad’s address and employment;
  • Formally querying USPS via a “Change of Address or Boxholder Information Needed for Service of Legal Process,” which returned 559 Bristol Street, Brooklyn, as the defendant’s new address/boxholder; and
  • Attempting personal service at that address on three separate days and times between September 16 and 22, 2020 before resorting to affix‑and‑mail on September 24, 2020.
• The panel emphasizes not only the number of attempts but also the robust investigatory groundwork—particularly the USPS response and extensive online tracing—as collectively satisfying due diligence.

2) Proper location for affix‑and‑mail

• Encarnacion and Feinstein make clear that affixation must occur at the defendant’s actual residence or business. Here, the USPS response identified 559 Bristol Street as Noushad’s “new address or boxholder name and street address,” which the court found more probative than a “possible last known address.”
• Once PNMAC submitted the process server’s affidavit, a presumption of proper service arose. To rebut it, Noushad needed more than a bare denial; he was required to provide documentary proof of non‑residence or an affidavit from a current occupant denying his residency or receipt. He provided neither.
• Given the USPS designation and the absence of contrary proof, the court treated 559 Bristol Street as an appropriate service location for CPLR 308(4) purposes.

Resulting application of standards

• Because due diligence was shown and the address was adequately supported, the court held that resort to CPLR 308(4) was proper and the service effected was valid.
• Accordingly, the defendant’s motion to dismiss under CPLR 3211(a)(8) for lack of personal jurisdiction was properly denied.

Impact and Practical Consequences

The decision is most notable for operationalizing modern “due diligence” in service of process, particularly in foreclosure and other high‑volume civil litigation:

• USPS data as a strong locator: A USPS response designating a “new address or boxholder name and street address” is powerful evidence that plaintiffs can reasonably rely upon for service attempts. The panel’s express distinction between “new address” and “possible, last known address” gives practitioners a helpful evidentiary hierarchy.
• Digital investigations count: The court’s approval of approximately 50 online searches as part of due diligence validates and encourages thorough digital tracing to locate defendants.
• Three attempts suffice when coupled with investigation: Consistent with Waterman and related cases, three varied in‑person attempts—supplemented by meaningful pre‑attempt research—meet CPLR 308(4)’s due diligence requirement in many circumstances.
• Heightened burden on defendants challenging service: A naked denial of residence at the service address will usually fail. Defendants should anticipate the need for:
  • Documentary evidence (leases, utility bills, tax returns, DMV records) disproving residence at the service address; and
  • Affidavits from occupants or landlords of the service address denying the defendant’s residence or receipt.
• Foreclosure practice: Given the frequency of jurisdictional challenges in foreclosure cases, this decision will likely reduce successful service challenges where plaintiffs document USPS COA responses, thorough online searches, and multi‑day attempts at the identified address.
• Post‑vacatur re‑service under CPLR 306‑b: Although not directly at issue on appeal, the case illustrates how courts will allow re‑service “in the interest of justice” and then scrutinize renewed service efforts under 308(4). Plaintiffs who receive a 306‑b extension should assume they must build a strong diligence record for any subsequent 308(4) service.

Complex Concepts Simplified

• CPLR 308(1), (2), and (4):
  • (1) Personal delivery to the defendant;
  • (2) “Substituted service” by delivering to a person of suitable age and discretion at the defendant’s home or business and mailing a copy;
  • (4) “Affix‑and‑mail” (often called “nail and mail”): after due diligence fails under (1) and (2), affix the summons to the door of the defendant’s actual residence or business and mail a copy to the last known residence or actual business.
• Due diligence: Reasonable, good‑faith efforts to personally serve—typically multiple attempts on different days/times at addresses where the defendant is likely to be found, plus reasonable investigative steps to verify the address.
• Presumption of proper service: A process server’s detailed, sworn affidavit creates a presumption that service was properly made. The defendant must rebut with specific, credible evidence—not just a conclusory denial.
• Order of reference (foreclosure): An order appointing a referee to compute the amount due, a typical step after a borrower’s default in foreclosure proceedings.
• CPLR 3211(a)(8): A motion to dismiss for lack of personal jurisdiction. If service was invalid, the court lacks jurisdiction and the complaint must be dismissed as to that defendant.
• CPLR 306‑b: Allows courts to extend the time for service for “good cause” or “in the interest of justice.” Here, after earlier service was found invalid, the court extended time, enabling PNMAC’s renewed service attempts in 2020.
• USPS Change‑of‑Address response: A formal response to a legal process inquiry indicating the address to which a person’s mail has been redirected. The court treats a “new address or boxholder” designation as reliable evidence to guide service attempts.

Key Takeaways

• Three non‑consecutive, varied attempts at service, coupled with robust investigative efforts (including USPS COA and extensive online searches), generally satisfy CPLR 308(4)’s due diligence requirement.
• A USPS response naming a “new address or boxholder” can substantiate the service location and is more persuasive than a mere “possible last known address.”
• To rebut the presumption of proper service, defendants must provide documentary corroboration or affidavits from residents/occupants; a bare denial is insufficient.
• In foreclosure litigation, well‑documented diligence and reliance on USPS data significantly strengthen the enforceability of 308(4) service.

Conclusion

PNMAC Mortgage Opportunity Fund Invs., LLC v. Noushad reinforces a practical, evidence‑driven approach to CPLR 308(4). The Second Department confirms that targeted investigative work—especially a USPS Change‑of‑Address response indicating a new address—combined with multiple, varied personal service attempts, meets the due diligence threshold. Just as importantly, the decision tightens the defense burden: a conclusory denial of residency will not defeat the presumption of proper service absent documentary support or affidavits from occupants of the service address.

In the broader landscape, this opinion strengthens the reliability of affix‑and‑mail for plaintiffs who build a meticulous service record and signals to defendants that jurisdictional challenges must be substantiated with concrete evidence. As such, it provides both a roadmap for compliant service and a cautionary tale for cursory challenges, with likely ripple effects across foreclosure and general civil practice in New York.