Loury v. Abramson

In an action to recover damages for legal malpractice, the defendant appeals from an order of the Supreme Court, Kings County (Golden, J.), dated March 12, 1990, which denied his motion to dismiss the action for lack of personal jurisdiction. Ordered that the order is reversed, on the law, with costs, the motion is granted, and the action is dismissed. We conclude that the Supreme Court erred in denying the defendant’s motion to dismiss the action. Process was served upon the defendant pursuant to CPLR 308 (4), the so-called "nail and mail” provision. However, the affidavit of service made no showing of any attempt to effect service pursuant to [515] CPLR 308 (1) and (2), and was therefore insufficient, as a matter of law, to satisfy the "due diligence” requirement of CPLR 308 (4) (see, Magalios v Benjamin, 160 AD2d 773; Moss v Corwin, 154 AD2d 443). Mangano, P. J., Lawrence, Rosenblatt and Copertino, JJ., concur.