On June 9, 2025, Justice Jamieson of the Westchester County Commercial Division issued a decision in Westchester Community Coll. v. Bekoe, 2025 NY Slip Op. 50937(U), holding that nail and mail service was ineffective when there was insufficient diligence in attempting personal service, explaining:
Defendant brings his motion seeking to vacate the approximately $4,500 judgment entered against him on default on December 18, 2024. He asserts that he received the court papers too late. According to the affidavit of service, he was purportedly served by nail and mail service. This section requires that a process server first attempt personal service with due diligence before resorting to nail and mail service. The Second Department has repeatedly emphasized that the due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received. What constitutes due diligence is determined on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but on their quality.
A review of the affidavit of service shows that only three attempts were made to serve defendant: on a Friday at 12:39 p.m.; a Wednesday at 6:02 p.m.; and a Thursday at 9:52 a.m. A mere showing of several attempts at service at either a defendant’s residence or place of business may not satisfy the due diligence requirement before resort to nail and mail service. However, due diligence may be satisfied with a few visits on different occasions and at different times to the defendant’s residence or place of business when the defendant could reasonably be expected to be found at such location at those times. For the purpose of satisfying the due diligence requirement of CPLR 308(4), it must be shown that the process server made genuine inquiries about the defendant’s whereabouts and place of employment. Plaintiff made no such showing here. All that the process server says about ascertaining defendant’s workplace is that I was unable to determine place of employment. He does not state was efforts he made.
As the Second Department has explained, service is not effectuated when all of the attempts are on on weekdays and between the hours of 9 A.M. and 6 P.M., times when it would be expected that defendant would be either working or commuting to or from work. Additionally, the process server’s statement as to any attempts he made to ascertain the place of employment of defendant were, at best, conclusory and ambiguous, and insufficient to show that the necessary inquiry was made.
(Internal quotations and citations omitted).