Vail v. Catalano

Order unanimously affirmed with costs. Memorandum: Defendant moved to dismiss the complaint on the ground that the process server had not exercised due diligence prior to resorting to substituted service. Supreme Court properly denied the motion. Three attempts to effect service during business hours at an address that was both defendant’s residence and his place of business constituted due diligence, which authorized plaintiffs’ utilization of the "affix and mail” method of service (CPLR 308 [4]; see, Lembo & Sons v Robinson, 99 AD2d 872, 873-874, lv dismissed 63 NY2d 675; Velez v Springer, 92 AD2d 610). (Appeal from order of Supreme Court, Erie County, Sedita, J.—dismiss complaint.) Present—Dillon, P. J., Callahan, Boomer, Green and Balio, JJ.