On April 17, 2023, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Goldman Sachs Bank USA v. Wagschal, 2023 NY Slip Op. 31263(U), holding that nail and mail service was inadequate because the process server failed to attempt service at the defendant’s business address, explaining:
However, the defendant argues that service pursuant tb CPLR §308(4) was defective since some of the times for attempted service was improper. It 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. Moreover, in Serrano v. Staropoli; 94 AD3d 1083, 943 NYS2d 201 [2d Dept., 2012], the court held that due diligence included 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. These requirements are not merely technical rules but emerges from an understanding that the purpose of serving process is to try and ensure that process is received.
In this case, the affidavit of service lists numerous times when personal service upon the defendant was attempted. One of the attempts was on a Saturday. There is insufficient evidence such service violated General Business Law §13 since that statute requires malice which has been defined as knowledge the defendant observes and recognizes the Sabbath. In any event, such service was surely improper and cannot constitute a valid attempt to support the requisite attempts necessary to resort to service pursuant to CPLR § 308(4).
Thus, according to the affidavit of the process server there were two additional attempts at service: Thursday July 28, 2022 at
(Internal citations omitted).
8:00 AM and Monday August 1, 2022 at 9:50 AM. However, those attempts were both in the morning hours and insufficiently attempted to serve process when the defendant was home. Moreover, there is no indication at all that service was attempted at the·defendant’s place of business. This is significant since the first promissory note, the mortgage and guaranty, the building loan note, ·the building loan mortgage and guaranty all dated September 25, 2019 all list the business address of the defendant as 4403 15th Avenue in Kings County. Further, the first forbearance agreement and guaranty both dated September 10, 2020 list a business address as 4403 15th Avenue in Kings County. Moreover, the second forbearance agreement dated June 15, 2021 also lists the business address as 4403 15th Avenue in Kings County. Thus, the plaintiff was familiar with the: business address of the defendant and was required to attempt service at that address before resorting to alternative service.