On January 8, 2025, the Second Department issued a decision in Creswell Invs., Ltd. v. Brazil+Q1 Ltd., 2025 NY Slip Op. 00081, holding that nail and mail service was ineffective when the process server failed to exercise sufficient diligence in attempting to serve the defendant, explaining:
Service of process upon a natural person must be made in strict compliance with statutory methods of service pursuant to CPLR 308. The failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void.
CPLR 308 requires that service be attempted by personal delivery of the summons to the person to be served, or by delivery to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode. Service pursuant to CPLR 308(4) may be used only where service under CPLR 308(1) or (2) cannot be made with due diligence. 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.
Here, with respect to Laudano, the plaintiff failed to demonstrate that the process server acted with due diligence before relying on affix and mail service pursuant to CPLR 308(4). The process server averred that he made three attempts to personally serve Laudano at his usual place of abode before affixing the summons and complaint to the door thereof. Two of those attempts were made on consecutive days and all three attempts were made between 10:00 a.m. and 1:00 p.m. Therefore, the Supreme Court properly granted, in effect, pursuant to CPLR 3211(a)(8) that branch of the defendants’ cross-motion which was to dismiss the complaint insofar as asserted against Laudano and denied that branch of the plaintiff’s motion which was for leave to enter a default judgment against Laudano.
(Internal quotations and citations omitted).