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Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: February 15, 2021

Court Upholds Nail and Mail Service

On February 1, 2021, Justice Borrok of the New York County Commercial Division issued a decision in Ladder Capital Fin. LLC v. Paul, 2021 NY Slip Op. 30321(U), finding that nail and mail service was adequate, explaining:

Pursuant to CPLR ยง 308(4), where service under paragraphs 1 and 2 cannot be made with due diligence service may be made by affixing a summons to the door of either the actual dwelling place or usual place of abode and by mailing the summons to such person at his last known residence. Upon the record before the court, two process servers attempted to serve the Defendant at his address on three different occasions before resorting to nail and mail service.

In an affidavit dated July 7, 2020, Dana McMichael explained that she was the owner of Assured Civil Process Agency and her office received a summons and amended complaint for the Defendant at 7800 Cava Place, Austin, Tx 78735. On February 13, 2020, Kelly Murski attempted to serve the Defendant but was unable to do so because the Defendant’s home is a gated property. At that time Ms. Murski spoke with a woman who identified herself as the Defendant’s mother-in-law and advised that the Defendant was not at home. On February 22, 2020, Matthew Murski attempted service over the weekend and again could not access the gated property. Although Mr. Murski spoke with the babysitter and asked for the Defendant or his wife, the babysitter simply returned to the house and no one came out after 10 minutes. Mr. Murski reported that at that time he saw a white Bentley parked at the address, which was registered to the Defendant. On February 26, 2020, Ms. Murski again attempted unsuccessfully to personally serve the Defendant. On March 2, 2020, then Ms. Murski attached the papers to the gate of the address on March 2, 2020. Under these circumstances, service was proper.

(Internal quotations and citations omitted).

The rules regarding how you start a lawsuit and bring the defendants into it can sometimes be esoteric. Failing properly to serve a defendant with the papers initiating an action can result in its dismissal, regardless of whether the defendant had actual notice of the lawsuit. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have a question regarding the proper way to serve a defendant, bringing them into a lawsuit.

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