Criminal Law · MBE-tested
Albert Wagner & Son, Inc., Respondent, v. Leo Schreiber, Appellant
210 A.D.2d 143621 N.Y.S.2d 15·New York Supreme Court, Appellate Division·1994·NY
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Opinion
Albert Wagner & Son, Inc., Respondent, v Leo Schreiber, Appellant.
[621 NYS2d 15]
[MAJORITY]
—Order, Supreme Court, New York County (Burton S. Sherman, J.), entered September 2, 1993, which, inter alia, granted plaintiffs motion to confirm the Special Referee’s report sustaining service of process, unanimously affirmed, with costs.
We agree with the Special Referee that the process server’s three unsuccessful attempts to gain access to defendant’s apartment building, including a visit at 7:00 p.m. when a working person would normally be home, constituted due diligence warranting substituted service pursuant to CPLR 308 (4). After ascertaining that defendant did in fact live in the premises, it was also proper for the process server to affix a copy of the summons and complaint to the interior door of the building’s foyer, this being the location where the process server’s progress was arrested and thus the “outer bounds” of defendant’s actual dwelling place (duPont, Glore Forgan & Co. v Chen, 41 NY2d 794, 797). Concur—Sullivan, J. P., Wallach, Ross, Rubin and Williams, JJ.