On May 19, 2023, Justice Cohen of the New York County Commercial Division issued a decision in McGuigan v. Gendell, 2023 NY Slip Op. 31697(U), holding that nail and mail service was ineffective because of the failure to investigate whether service was made at the correct address, explaining:
A party may resort to nail and mail service under CPLR 308(4) only after engaging in due diligence to complete service under CPLR 308(1) and (2). Service is effective under Section 308(4) only if affixed to the defendant’s actual dwelling place or usual place of abode while the statutorily required mailing may be made to the defendant’s last known residence. Accordingly, where a defendant moved almost a year before service was attempted, a motion for a default judgment was denied for failure to complete due diligence.
Plaintiffs Affidavit of Service is defective because it does not establish (1) that any due diligence was undertaken to determine Gendell’s actual residence; (2) that service was made at Gendell’s actual residence; or (3) that the required mailing was made. Accordingly, Plaintiffs have not sustained their burden to establish proper service under CPLR 3215(f). Therefore, Gendell need not demonstrate a meritorious defense to avoid a default. Even if the Affidavit of Service was not defective, the Court finds that Gendell’s Affidavit is sufficient to rebut Plaintiffs’ assertion that proper service was made.
(Internal quotations and citations omitted).