Judge Andrew Tarantino Jr.
Powell sought a return of a security deposit. He moved for a default judgment for Fink’s failure to answer the complaint. Fink cross-moved for dismissal arguing an action was pending the East Hampton Justice Court, and there was improper service. The court stated it was disingenuous to direct service of process on Fink March 1 and 2, 2012 when Powell’s counsel was told he would be out of the country until March 3. Thus, while three attempts at different times were made, the due diligence requirement for service was not met and service was not completed under CPLR 308(4). However, the court concluded service was effected under CPLR 308(2) as the process server’s uncontroverted testimony revealed a young man in his 20s, a person of suitable age and discretion, answered the door on March 3, noted he was not Fink, was informed of the process server’s mission, but walked away without taking the papers. Thus, the server affixed the papers to the door, and mailed a copy to the same address and to a post office box. The court noted Fink acknowledged receipt of the mailing, thus the filing provisions of §308(2) and §306-b were satisfied, and Fink’s motion to dismiss for improper service was denied.
