Rothkopf v. Rothkopf

Mar 29, 1993
Versions:191 A.D.2d 685
595 N.Y.S.2d 506
1993 N.Y. App. Div. LEXIS 3166

—In an action for payment of several loans, in which a judgment by confession was entered by the plaintiffs, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Cannavo, J.), dated November 16, 1990, which denied their motion to vacate an order of the same court, which granted, upon their default in answering, a motion by the intervener to vacate the judgment.

Ordered that the order is affirmed, with costs.

The plaintiffs contend that the intervenor’s service of the order to show cause seeking to vacate the confessed judgment was ineffective and thus did not confer personal jurisdiction over them. Accordingly, the plaintiffs conclude, the resultant order upon their default should be vacated and the confessed judgment in their favor should be reinstated. We disagree. The subject order to show cause specified only that it was to be served upon the plaintiffs by "personal service”. After exercising due diligence in attempting to effect service pursuant to CPLR 308 (1) and (2), the plaintiffs were served by the "nail and mail” method (CPLR 308 [4]). The plaintiffs’ argu ment that this method did not constitute the requisite "personal service” is belied by the fact that the Legislature has specifically enumerated the "nail and mail”, also known as "affix and mail”, procedure among the methods of "[pjersonal service upon a natural person” (CPLR 308; see, Siegel, NY Prac § 74, at 96 [2d ed]). Indeed, since the order to show cause stated that it was to be served by "personal service”, we conclude that any of the four methods of personal service enumerated in CPLR 308 would be sufficient to confer jurisdiction over the plaintiffs (see, Matter of Weill v Erickson, 49 AD2d 895).

The plaintiffs’ remaining contentions are either not properly before this Court (see, Rohdie v Michael Guidice, Inc., 132 AD2d 541, 542), or without merit (see, County Natl. Bank v Vogt, 28 AD2d 793, affd 21 NY2d 800). Sullivan, J. P., Rosenblatt, Lawrence and O’Brien, JJ., concur.