NEW YORK SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
April 25, 2012
LVNV FUNDING, LLC, RESPONDENT, --
MARIA STASI, APPELLANT.
Appeal from an order of the District Court of Suffolk County, Fourth District (Stephen L. Ukeiley, J.), entered February 16, 2011.
Lvnv Funding, LLC v Stasi
Decided on April 25, 2012
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: IANNACCI, J.P., NICOLAI and MOLIA, JJ .
The order denied defendant's motion to vacate a default judgment.
ORDERED that the order is reversed, without costs, defendant's motion to vacate the default judgment is granted and defendant shall serve and file her answer within 30 days of the date of this order and decision; if defendant fails to do so, plaintiff may enter a judgment in the amount demanded in the complaint.
Plaintiff commenced this action to recover for breach of a credit card agreement and upon an account stated. A default judgment was entered against defendant on January 1, 2008. Defendant moved to vacate the default judgment based on excusable default, alleging, among other things, that she had not been served. In opposition to the motion, plaintiff submitted the process server's affidavit as evidence of proper service, wherein the process server alleged that he had attempted to serve defendant on October 23, 2007 at 9:51 A.M.; October 24, 2007 at 12:06 P.M.; and October 25, 2007 at 12:14 P.M. and then had affixed the summons and complaint at a residence located in Smithtown, NY The District Court denied defendant's motion.
Plaintiff attempted to serve defendant by "nail and mail" service pursuant to CPLR 308 (4). Upon a review of the record, we find that the process server did not exercise due diligence when he affixed the summons and complaint to the door of a residence in Smithtown, NY on October 25, 2007 after three attempts to serve defendant during working hours when it reasonably could have been expected that defendant was working (see O'Connell v Post, 27 AD3d 630 ). Moreover, there is no indication that the process server made any attempt to locate defendant's business address in order to serve her at that location (see County of Nassau v Letosky, 34 AD3d 414 ).
Accordingly, the order is reversed, defendant's motion to vacate the default judgment is granted and, based on the fact that defendant did not seek to dismiss the complaint, defendant is directed to serve and file an answer within 30 days of the date of the order hereon. If defendant fails to do so, plaintiff may enter a judgment in the amount demanded in the complaint.
Iannacci, J.P., Nicolai and Molia, JJ., concur.
Decision Date: April 25, 2012
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