O'Heaney v. O'Heaney

OPINION of the court Dillon, P. J. This appeal comes to us in a unique posture and presents the question of whether in a matrimonial action a showing that service of process under CPLR 308 (subds 1, 2) can [47] not be made with due diligence is a precondition to an order for substituted service pursuant to subdivision a of section 232 of the Domestic Relations Law and CPLR 308 (subd 4). We hold that it is, and that substituted service pursuant to an order issued upon less than competent proof that the condition has been satisfied will not confer jurisdiction over the person of the defendant. This long-term marriage produced three children. Aged 21,19 and 17, they continued to reside with defendant when the parties commenced living apart in November, 1979. On July 18, 1980 plaintiff, solely upon the affidavit of a member of the law firm representing him, applied ex parte for an order of substituted service pursuant to subdivision a of section 232 of the Domestic Relations Law and CPLR 308 (subd 4). Special Term’s order permitting “nail and mail” service also included a direction that defendant show cause “why an order should not be made stating that service of a Summons and Complaint upon [defendant] on July 18, 1980, by means of affixing and mailing and subsequent filing within twenty (20) days shall not be deemed sufficient service and shall not be deemed to have commenced an action for a divorce as of July 18, 1980”. It is not disputed on appeal that the acts of “nailing and mailing” were accomplished on July 18, 1980. Subsequent thereto, on the return of the order to show cause before another Justice, plaintiff submitted for the first time a process server’s affidavit which that court found contained averments “more than adequate to meet the requirement of deligent attempts at service”.1 On that finding it was concluded that personal service of the defendant had been effected on July 18,1980. Defendant appeals from the order thus validating service of process.2 [48] Mindful in assessing the jurisdictional issue that a statute which permits service of process other than by personal service must be strictly construed and faithfully followed (Erickson v Macy, 231 NY 86, 90-91; Korn v Lipman, 201 NY 404, 406; Air Conditioning Training Corp. v Pirrote, 270 App Div 391, 393), we need examine only briefly the relevant statutory authority for substituted service in a divorce action. Where, in the exercise of due diligence, service of a summons cannot be made upon a defendant in accordance with CPLR 308 (subds 1, 2), “nail and mail” service may be made pursuant to subdivision 4 thereof without court order in all except matrimonial actions. In the latter, a prior court order for “nail and mail” service is required pursuant to subdivision a of section 232 of the Domestic Relations Law which authorizes substituted service “in accordance with the provisions of” CPLR 308. Construed together, the statutes make clear that the proof required to withstand a postservice attack upon the necessity for, and thus the validity of, “nail and mail” service in the ordinary case (see Barnes v City of New York, 51 NY2d 906, affg 70 AD2d 580) is the same as that which must be demonstrated to the court before an order therefor may be entered in a matrimonial action. It follows, then, that the court’s discretion to authorize “nail and mail” service in an action for divorce may only be exercised upon a prior showing that delivery of the summons pursuant to CPLR 308 (subds 1,2) “cannot be made with due diligence” (CPLR 308, subd 4). To hold otherwise would be to equate without real distinction and in contravention of clear legislative expression the procedure to be followed in matrimonial actions with that which is permitted in other actions. The conclusion thus reached is not without precedent. Prior to 1974, substituted service of process pursuant to CPLR 308 (subds 2, 3 or 4) was not permitted in matrimonial actions. Expedient service pursuant to subdivision 5 of that section, in lieu of the traditional method of publication, was and remains permissible (see Deason v Deason, 73 Misc 2d 964, decided in response to language in Deason [49] v Deason, 32 NY2d 93, 95). It was well established that whether sought in a matrimonial action under CPLR 308 (subd 5) (including use thereunder of the “nail and mail” method) or under former sections 230 and 231 of the Civil Practice Act (pursuant to which a court order for substituted service was required), substituted service could not be approved except upon a proper showing of necessity, including where appropriate, a demonstration that bona fide attempts to serve the defendant personally had failed (Arroyo v Arroyo, 76 Misc 2d 652; Deason v Deason, 73 Misc 2d 964, supra; Blatz v Benschine, 53 Misc 2d 352; see Civ Prac Act, former § 230; cf. Haswell v Lincks, 87 NY 637; McCarthy v McCarthy, 16 Hun 546, affd 84 NY 671). Here plaintiff’s application for an order permitting “nail and mail” service was based solely upon the affidavit of one of his attorneys. Its essential allegations were insufficient to demonstrate either that personal delivery of the summons could not be made or that “due diligence” had been exercised in an effort to effect such delivery. The affidavit was based not upon personal knowledge of the affiant but merely upon information and belief. As such, its averments that a summons and complaint had been delivered to a process server “during the week of July 14, 1980” and that the process server had unsuccessfully “made several attempts” to effect personal service upon defendant, and that defendant had “secreted her whereabouts * * * in order to * * * intentionally and wilfully avoid service”, were of no evidentiary value and failed to satisfy the statutory precondition. Nor could the defective order be cured by proof on return of the order to show cause subsequent to “nailing and mailing”. Unlike the practice in nonmatrimonial cases where evidence supporting the need for substituted service is submitted postservice, and where a matter may somtimes be remitted for further proceedings on that issue (see, e.g., Gilbert v Lehman, 73 AD2d 793), the determination that the statutory standard has been satisfied must be made in a matrimonial action before the order for such service is issued. [50] The order permitting substituted service having been granted in derogation of both statute and precedent, jurisdiction over the person of the defendant has not been achieved. Thus viewed, there is no need to address the other issues raised on appeal. Accordingly, the order appealed from should be reversed and the order authorizing substituted service should be vacated and the application therefor denied. Footnotes [1] While we do not agree that the affidavit demonstrates “due diligence”, it is unnecessary in our view of the matter to address the issue. [2] Underlying the controversy between the parties is the effect upon their respective rights of the “Equitable Distribution Law” (L 1980, ch 281, Domestic Relations Law, § 236) which was signed by the Governor on June 19, 1980 and became effective on July 19, 1980. Part B of section 236, as amended, provides for the equitable distribution of “marital property” as that term is statutorily defined (Domestic Relations Law, § 236, part B, subd 1, par c), and is intended to achieve “sexual equality” in the consequences of matrimonial actions (Gellman v Gellman, 80 AD2d 735). Part B is to be applied, however, (n. contd.) [48] only to actions commenced on or after July 19, 1980. Part A is controlling with respect to any action commenced before that date.