On October 10, 2023, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Davidovich v. Shimha LLC, 2023 NY Slip Op. 33638(U), rejecting an attack on the sufficiency of nail and mail service, explaining:
[I]t is well settled that pursuant to CPLR §308(4) the plaintiff must exercise due diligence to demonstrate that personal service or service upon someone of suitable age and discretion could not be made. Thus, one attempt at personal service is insufficient. Likewise, service at the same times of the day is equally insufficient. In this case the affidavit of the process server indicates that service was attempted three times at three different times of day satisfying the due diligence requirement. The defendant asserts due diligence was not satisfied because the process server did not explain that service was attempted at the defendant’s place of business. It is true that due diligence includes trying to ascertain the. business address of the. party to effectuate service there. Therefore, where the affidavit from the process server fails to indicate efforts to locate defendant’s business address for personal service there then service is improper. However, other than presenting that argument, there is no evidence the defendant even had a business address wherein service could be effectuated. The affidavit of David Simha does not mention a business address and Mr. Simha is listed in various documents as a manager of Shimha and the president of Medway which are both located in Massachusetts. Thus, there is no basis to even speculate the defendant had a business address where service could have been effectuated.
Further, it is true that generally a process server’s affidavit provides prima facie evidence of proper service. To contend that service was improper and that defendant is entitled to a hearing on the matter, the defendant must allege facts to support the contention. Likewise, conclusory denials are insufficient to entitle a defendant to a hearing concerning service. Consequently, a defendant is generally required to issue a sworn denial concerning service. Thus a sworn denial by defendant that the location of the service was no longer his usual place of abode raises an issue whether service was proper. In this case, there was service upon the premises pursuant to CPLR §308(4). Mr. Simha has not raised any specific objections concerning service of process in any significant way. He merely states in conclusory fashion that concerning service he never observed that the summons and
(Internal citations omitted)
Complaint was affixed to my front door without explaining in any way the specific manner in which process was deficient. In Caba v, Rai, 63 AD3d 578, 882 NYS2d 56 [1st Dept. 2009) the court specifically held that merely asserting that “I was not served with a summons and verified complaint” is conclusory and insufficient to raise any issue of fact concerning service. Therefore, based on the foregoing, any motion seeking to dismiss the case based upon jurisdiction or improper service is denied.