175 A.D.2d 580 | N.Y. App. Div. | 1991
— Order unanimously reversed on the law with costs and motion granted. Memorandum: Plaintiff purportedly commenced this action for a judgment of foreclosure by substituted service upon defendant pursuant to CPLR 308 (4). The record reveals that defendant leased his residence to tenants two months prior to any attempt to serve him there and that he was not residing there on the date the process server attempted substituted service pursuant to CPLR 308 (4). Plaintiff, therefore, failed to satisfy the requirement that the summons be affixed to the door of defendant’s actual dwelling place (CPLR 308 [4]). Accordingly, defendant’s motion to vacate the default judgment upon the ground of lack of jurisdiction should have been granted (see, CPLR 5015 [a] [4]; Feinstein v Bergner, 48 NY2d 234; Community State Bank v Haakonson, 94 AD2d 838; Polansky v Paugh, 23 AD2d 643). Moreover, by failing to make any inquiry of neighbors or others regarding defendant’s habits and employment and by failing to attempt to serve defendant at his place of business, plaintiff, who was aware at least two days before the fourth attempt at service that defendant had leased the premises to others, did not exercise due diligence in attempting to serve defendant pursuant to CPLR 308 (1) or (2) (see, Moss v Corwin, 154 AD2d 443; DeShong v Marks, 144 AD2d 623, lv dismissed 74 NY2d 946; Smith v Wilson, 130 AD2d 821; Bleier v Heschel, 128 AD2d 662).
There is no merit to plaintiff’s contention that defendant should be estopped from contesting jurisdiction. The record is devoid of evidence that defendant engaged in affirmative conduct calculated to prevent plaintiff from learning of his actual residence (see, Feinstein v Bergner, 48 NY2d 234, 241, supra; Community State Bank v Haakonson, 94 AD2d 838, 839, supra). (Appeal from Order of Supreme Court, Onondaga County, Reagan, J. — Vacate Default Judgment.) Present — Callahan, J. P., Denman, Boomer, Balio and Lowery, JJ.