On January 15, 2026, Justice Jamieson of the Westchester County Commercial Division issued a decision in Gonzalez v. Marte, 2026 NY Slip Op. 50058(U), holding that nail and mail service was improper because of a lack of due diligence in locating the defendant, explaining:
Defendant was purportedly served at his last known address by nail and mail service. These attempts were made on weekdays during hours when it reasonably could have been expected that defendant was either working or in transit to or from work. Moreover, there is no indication that the process server made any attempt to locate defendant’s business address or to effectuate personal service thereat. In this case, three of the four attempts made by the process server were during hours when defendant would be at work or in transit to or from work. Nor did the process server attempt to locate defendant’s business address. This is not due diligence — especially considering the large sums demanded here, for the purchase of property and a business in the Dominican Republic.
Although due diligence is not defined in the statutory framework, the term has been interpreted and applied on a case-by-case basis. The due diligence requirement refers to the quality of the efforts made to effect personal service, and certainly not to their quantity or frequency. 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, given the reduced likelihood that a summons served pursuant to nail and mail service will be received. As the process server did not use due diligence here, the Court must deny the motion based on lack of jurisdiction.
(Internal quotations and citations omitted).