Zimmerman Law, PLLC, Huntington Station, N.Y. (Naomi Trainer of counsel), for appellant.
Davidson Fink LLP, Rochester, N.Y. (Larry T. Powell of counsel), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.
Opinion
In an action to foreclose a mortgage, the defendant Collette Hudson appeals from an order of the Supreme Court, Nassau County (Adams, J.), dated February 23, 2015, which denied
her motion pursuant to CPLR 5015 (a)(4) to vacate a judgment of foreclosure and sale dated December 15, 2008, entered upon her default in answering the complaint and, thereupon, to dismiss the complaint insofar as asserted against her.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action to foreclose a mortgage. The defendant Collette Hudson (hereinafter the homeowner) defaulted in answering. A judgment of foreclosure and sale was subsequently entered, upon her default in answering. More than five years later, the homeowner moved pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and, thereupon, to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction and standing. The homeowner asserted that the plaintiff did not exercise due diligence in attempting to make personal service on her before resorting to affix and mail service pursuant to CPLR 308(4). The Supreme Court
denied the homeowner's motion. We affirm.
Service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with “due diligence” (CPLR 308 [4] ; see Deutsche Bank Natl. Trust Co. v. White, 110 A.D.3d 759, 759–760, 972 N.Y.S.2d 664 ; Estate of Waterman v. Jones, 46 A.D.3d 63, 65, 843 N.Y.S.2d 462 ). The term “due diligence,” which is not defined by statute, has been interpreted and applied on a case-by-case basis (see Estate of Waterman v. Jones, 46 A.D.3d at 66, 843 N.Y.S.2d 462 ).
Here, the affidavits of the process server demonstrated that three visits were made to the homeowner's residence on three different occasions and at different times of the day. The process server also described in detail his unsuccessful attempt to obtain an employment address for the homeowner. Contrary to the homeowner's contention, under these circumstances, the due diligence requirement was satisfied (see Wells Fargo Bank, NA v. Besemer, 131 A.D.3d 1047, 1048, 16 N.Y.S.3d 819 ; JP Morgan Chase Bank, N.A. v. Baldi, 128 A.D.3d 777, 778, 10 N.Y.S.3d 126 ; Lemberger v. Khan, 18 A.D.3d 447, 447–448, 794 N.Y.S.2d 416 ).
The homeowner's remaining contentions are without merit. Accordingly, the Supreme Court properly denied the homeowner's motion to vacate the judgment of foreclosure and sale and, thereupon, to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction and standing.