ESTABLISHING IMPROPER SERVICE WHEN SEEKING TO VACATE A DEFAULT JUDGMENT

U.S. Bank, N.A. v Cepeda, 2017 NY Slip Op 07767, Decided on November 8, 2017, Appellate Division, Second Department:

"The plaintiff commenced this action to foreclose a mortgage. The defendant Raymond Cepeda (hereinafter the homeowner) failed to appear or answer the complaint. A judgment of foreclosure and sale was subsequently entered upon his default in answering. The homeowner moved pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale for lack of personal jurisdiction. The homeowner asserted that the plaintiff did not exercise due diligence in attempting to make personal service on him before resorting to affix and mail service pursuant to CPLR 308(4). The Supreme Court granted the homeowner's motion, vacated the judgment of foreclosure and sale and, sua sponte, in effect, directed the dismissal of the complaint. We reverse.

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 AD3d 759, 759-760; Estate of Waterman v Jones, 46 AD3d 63, 65). 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 AD3d at 66).

Here, the affidavit of the process server demonstrated that three visits were made to the homeowner's residence, each on different days and at different times of the day. The process server also described in detail his unsuccessful attempt to obtain an employment address for the [*2]homeowner, including interviewing a neighbor. Under these circumstances, the Supreme Court improperly concluded that the due diligence requirement was not satisfied (see Lasalle Bank N.A. v Hudson, 139 AD3d 811, 811; Wells Fargo Bank, NA v Besemer, 131 AD3d 1047, 1048; JP Morgan Chase Bank, N.A. v Baldi, 128 AD3d 777, 777-778; Wells Fargo Bank, N.A. v Cherot, 102 AD3d 768; JPMorgan Chase Bank, N.A. v Szajna, 72 AD3d 902; Lemberger v Khan, 18 AD3d 447, 447-448)."