Roc-Lafayette Assoc., LLC v. Reuter

Roc-Lafayette Assoc., LLC v Reuter (2020 NY Slip Op 02885)

Roc-Lafayette Assoc., LLC v Reuter

2020 NY Slip Op 02885

Decided on May 14, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 14, 2020
Friedman, J.P., Gische, Kapnick, González, JJ.
11523 652181/18

Sternbach, Lawlor & Rella LLP, New York (Anthony Rella of counsel), for appellant.

Bronster LLP, New York (Don Abraham of counsel), for respondent.

Order, Supreme Court, New York County (Melissa A. Crane, J.), entered April 26, 2019, which denied plaintiff's motion for summary judgment in lieu of complaint and granted defendant's cross motion to dismiss the complaint, unanimously affirmed, without costs.

The record shows that the process server only attempted to effectuate service of process twice at an address which was not defendant's "actual place of business, dwelling place or usual place of abode within the state" (CPLR 308[4]). Under the circumstances presented, including that defendant had moved to Mexico almost a year before service was attempted, and that defendant had no contractual obligation to notify plaintiff that his address changed, plaintiff failed to satisfy the due diligence requirement of CPLR 308(4) (see e.g. Feinstein v Bergner , 48 NY2d 234, 241 [1979]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 14, 2020

CLERK