“Variety is the Spice of Life” — Service of Process under CPLR 308(4)
Print Article- Posted on: Nov 7 2025
William Cowper, in his Eighteenth-Century poem “The Task,” coined the phrase “Variety’s the very spice of life.” Today, this phrase is used in many contexts; albeit not so frequently when discussing service of process under CPLR 308(4) – the subject of today’s BLOG. In our recent BLOG article: “Primer – Personal Jurisdiction and Service of Process” we explored various process service issues. As discussed therein, obtaining personal jurisdiction[1] over a defendant is a critical aspect of litigation. There are two components of personal jurisdiction, which the New York Court of Appeals has succinctly described as follows:
One component involves service of process, which implicates due process requirements of notice and opportunity to be heard. Typically, a defendant who is otherwise subject to a court’s jurisdiction, may seek dismissal based on the claim that service was not properly effectuated.
The other component of personal jurisdiction involves the power, or reach, of a court over a party, so as to enforce judicial decrees. This consideration—the jurisdictional basis—is independent of service of process. Service of process cannot by itself vest a court with jurisdiction over a non-domiciliary served outside New York State, however flawless that service may be. To satisfy the jurisdictional basis there must be a constitutionally adequate connection between the defendant, the State and the action.
Keane v. Kamin, 94 N.Y.2d 263, 265 (1999) (citations omitted).
The law is clear that a “court lacks personal jurisdiction over a defendant who is not properly served with process.” Everbank v. Kelly, 203 A.D.3d 138, 142 (2nd Dep’t 2022) (citations omitted); see also Castillo-Florez v. Charlecius, 220 A.D.3d 1, 2 (2nd Dep’t 2023); Flatow v. Goddess Sanctuary & Spa Corp., 233 A.D.3d 656, 657 (2nd Dep’t 2024).
Proper service of process is important because it implicates an individual’s constitutional rights and, accordingly, “[w]hen it is determined that process was ineffective, all subsequent proceedings are rendered null and void as to that party.” Everbank, 203 A.D.3d at 143 (citations omitted); see also Federal Nat. Mort. Ass’n v. Smith, 219 A.D.3d 938, 940, 941-42 (2nd Dep’t 2023); Flatow, 233 A.D.3d at 257. “A defendant’s eventual awareness of pending litigation will not affect the absence of jurisdiction over him or her where service of process is not effectuated in compliance with CPLR 308.” Nationstar Mort. LLC v. Molyaev, 235 A.D.3d 648, 649 (2nd Dep’t 2025) (citations and internal quotation marks omitted); see also Raschel v. Rish, 69 N.Y.2d 694, 697 (1986). “Service of process upon a natural person must be made in strict compliance with the methods of service set forth in CPLR 308.” Federal Nat. Mort. Ass’n, 219 A.D.3d at 941-42 (citations, internal quotation marks and brackets omitted); see also Castillo-Florez, 220 A.D.3d at 2; Flatow, 233 A.D.3d at 257. “Typically, a defendant who is otherwise subject to a court’s jurisdiction, may seek dismissal based on the claim that service was not properly effectuated.” Keane, 94 N.Y.2d at 265 (citations omitted).
CPLR 308 describes several methods that may be employed to effectuate service of process on a natural person. CPLR 308(1) permits the delivery of a summons directly to the defendant. CPLR 308(2) permits service on a person of “suitable age and discretion” at the defendant’s “actual place of business, dwelling place or usual place of abode.” CPLR 308(3) permits service on an agent within the state designated under CPLR 318. When service under CPLR 308(1), (2) and (4) is “impractical,” CPLR 308(5) provides that service of process may be made as directed by the court. As relates to today’s BLOG, pursuant to CPLR 308(4), when “service under paragraphs one and two cannot be made with due diligence, a defendant can be served by “affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode” of the defendant.[2]
The due diligence requirements of CPLR 308(4) must be “‘strictly observed because there is a reduced likelihood that a defendant will actually receive the summons when it is served pursuant to CPLR 308(4).’” Ramirez v. Escobar, 228 A.D.3d 791, 792 (2nd Dep’t 2024) (quoting Serraro v. Staropoli, 94 A.D.3d 1083, 1084 (2nd Dep’t 2012)) (citations omitted); see also Coley v. Gonzalez, 170 A.D.3d 1107, 1108 (2nd Dep’t 2019); Niebling v. Pioreck, 222 A.D.3d 873, 875 (2nd Dep’t 2023). “What constitutes due diligence is determined on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but on their quality.” McSorley v. Spear, 50 A.D.3d 652, 653 (2nd Dep’t 2008) (citation omitted); see also Faruk v. Dawn, 162 A.D.3d 744, 745 (2nd Dep’t 2018) (same); Ramirez, 228 A.D.3d at 792; PNMAC Mortgage Opportunity Fund Investors, LLC v. Noushad, 240 A.D.3d 720, 722 (2nd Dep’t 2025).
As part of the diligence process, a process server must make “genuine inquiries about the defendant’s whereabouts and places of employment.” Faruk, 162 A.D.3d at 745-46; see also Serraro, 94 A.D.3d at 1085. Thus, courts have found lack of diligence where a process server failed to make “inquiries about the defendant’s whereabouts and place of employment.” McSorely, 50 A.D.3d at 654 (citations omitted); see also Niebling, 222 A.D.3d at 875; Sams Distributions, LLC v. Friedman, 235 A.D.3d 1021, 1023 (2nd Dep’t 2025) (quoting Niebling, supra). Finally, service will not be sustained when all attempts are made at times when the defendant will not likely be home or when working or commuting to work. See Serraro, 94 A.D.3d at 1085; McSorely, 50 A.D.3d at 653-54. Conversely, “[t]he due diligence requirement may be met with a few visits on different occasions and at different times to the defendant’s residence or place of business when the defendant could reasonably be expected to be found at such location at those times.” Ramirez, 228 A.D.3d at 792 (citations omitted); see also PNMAC, 240 A.D.3d at 772.
In Bank of America, N.A. v. Fischer, 220 A.D.3d 722 (2nd Dep’t 2023), the Court found that service of process was not properly effectuated despite numerous attempts at the defendant’s home between December 21 and December 29, notwithstanding a Saturday attempt, because: (1) “the attempts at service occurred at the height of the holiday season, when the defendant may have had reasons not to be home”; (2) the process server was “‘unable to speak to a neighbor regarding the defendant’s whereabouts”; and, (3) defendant disclosed his employer as part of a loan modification process and no attempt was made to serve the defendant at his place of employment. Bank of America, 220 A.D.3d at 724-25 (citation omitted). The Court found that the “totality of the circumstances” compelled the conclusion that service of process was never properly effectuated. Id. at 725.
Finding diligence on the process server’s part in PNMAC, the Court stated:
Here, the plaintiff submitted an affidavit of due diligence demonstrating that it conducted approximately 50 searches to ascertain the defendant’s address and place of employment, one of which, a request to the United States Postal Service for a Change of Address or Boxholder Information Needed for Service of Legal Process for the defendant, resulted in 559 Bristol Street, Brooklyn. Additionally, the process server made three attempts to serve the defendant at that address on different days and different times from September 16, 2020, through September 22, 2020. The Supreme Court properly concluded that, based on these few visits on different occasions and at different times to the defendant’s residence or place of business when the defendant could reasonably be expected to be found at such location at those times, in addition to the Internet searches, the due diligence requirement was met. [Citations and internal quotation marks omitted.]
These issues were addressed by the Appellate Division, Second Department, on October 29, 2025, in Bank of New York Mellon v. DeFilippo. Bank of New York was a mortgage foreclosure action.[3] The borrower in Bank of New York delivered a promissory note to lender and secured his repayment obligations with a mortgage on real property. In 2008, lender commenced a foreclosure action in which borrower was purportedly served with process pursuant to CPLR 308(4). Borrower failed to appear or answer the complaint. An order of reference was entered in 2010, and a motion to confirm the referee’s report was made in 2019. Later in 2019, lender moved to confirm the report and for a judgment of foreclosure and sale, which motion was granted in 2020. In 2023, borrower moved to vacate the order of reference and the judgment of foreclosure and sale based on lack of service of process. Borrower appeals from the denial of his motion.
In reversing the motion court, the Second Department, analyzed the existing case law along the lines set forth herein and concluded that service was improper. In so doing, the Court stated:
Here, the process server’s prior attempts at service did not demonstrate due diligence. Two out of three of the process server’s prior attempts at personal delivery at the defendant’s residence occurred during weekday hours when it could reasonably have been expected that the defendant was either working or in transit to or from work. The prior attempts were made on Thursday, April 17, 2008, at 6:15 p.m.; on Saturday, April 19, 2008, at 1:30 p.m.; and on Monday, April 21, 2008, at 8:20 a.m. The Saturday attempt occurred at a time when the defendant may have had reasons not to be home. The process server averred that a neighbor confirmed that the defendant resided at that address, but gave a negative reply when asked if the neighbor was aware of the defendant’s normal routine and place of business. Attached to the affidavit of service were the results of a “people at work” search, which revealed a company address for the defendant. Yet the process server made no inquiries about the defendant at that address before resorting to affix and mail service. Under the circumstances, the plaintiff failed to act with due diligence before relying on affix and mail service pursuant to CPLR 308(4). [Citation omitted.]
TAKEAWAY
When it comes to service pursuant to CPLR 308(4), courts look at, inter alia, the number and temporal variety of attempts to make sure that the defendant was likely home during at least one such attempt. Attempts made at different times of the day, during different weeks, coupled with evidence of inquiries about the defendant’s whereabouts, helps to sustain proper service.
Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.
This article is for informational purposes and is not intended to be and should not be taken as legal advice.
[1] This BLOG has written dozens of articles addressing numerous aspects of personal jurisdiction and service of process. To find such articles, please see the BLOG tile on our website and search for “jurisdiction” or “service of process” or any other commercial litigation issue that may be of interest you.
[2] CPLR 308(2) and (4) have some additional requirements before service will be deemed complete.
[3] This BLOG has written dozens of articles addressing numerous aspects of residential mortgage foreclosure. To find such articles, please see the BLOG tile on our website and search for any foreclosure, or other commercial litigation, issue that may be of interest you.
Tagged with: Civil Practice Law and Rules, Commercial Litigation, Personal Jurisdiction, Service of Process
