Leonard v. Grimes

In a negligence action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Richmond County (Leone, J.), dated October 9, 1996, which, after a hearing, granted the plaintiffs motion to strike the defendants’ affirmative defense of lack of personal jurisdiction. Ordered that the order is affirmed, with costs. The Supreme Court properly determined that the plaintiff established that her process server exercised due diligence in attempting to serve the defendants pursuant to CPLR 308 (1) and (2) before resorting to “nail and mail” service pursuant to CPLR 308 (4) (see, Singh v Gold Coin Laundry Equip., 234 AD2d 358; cf., Walker v Manning, 209 AD2d 691). The Supreme Court’s determination that the plaintiffs process server otherwise properly complied with the requirements of CPLR 308 (4), depended upon its determination as to the credibility of the witnesses who testified at the hearing (see, Federal Natl. Mtge. Assn. v Roth, 240 AD2d 466). Its conclusions in that regard are supported by the evidence and will not be disturbed on appeal. Bracken, J. P., Pizzuto, Altman and Krausman, JJ., concur.