There’s a clever saying of murky origin that goes, “if your only tool is a hammer, then every problem looks like a nail.” It describes the “law of the instrument,” or Maslow’s Hammer, which says that people tend to over-rely on their available and familiar tools, even when they shouldn’t. Well, when you’re looking for a default judgment, service often looks like nail and mail. And often it shouldn’t look that way.
We’ve previously written about how judges in the Westchester Commercial Division will deny even an unopposed motion for default judgment when the plaintiff fails to submit proof of the claim or of damages. On July 31, 2019, Justice Linda Jamieson issued another decision doing just that. The decision in Lliguicota v. Perez, Index No. 50059/2018, though, also shows that, on a motion for default judgment, the Court will independently determine if service was proper and deny a motion for default judgment if it was not.
In Lliguicota, the proof of service stated that the plaintiff served the summons under CPLR 308(4), customarily referred to as “nail and mail,” which permits service by a combination of “affixing the summons to the door” of the defendant’s home or business, and by mail, when personal service “cannot be made with due diligence.” Examining the affidavit of service, Justice Jamieson found that “it does not appear to the Court that plaintiff exercised due diligence before resorting to ‘nail and mail’ service under CPLR § 308(4).” Instead, “a review of the process server’s affidavit shows that although four attempts at service were made, all of them were ‘made on weekdays during hours when it reasonably could have been expected that [defendant] was either working or in transit to work’” (quoting County of Nassau v. Letosky, 34 A.D.3d 414, 824 N.Y.S.2d 153 (2d Dep’t 2006)). Justice Jamieson, therefore, directed the plaintiff to properly serve the summons within 20 days, and denied the motion.
Takeaway: Motions for default judgments will not be rubber-stamped by the justices of the Westchester Commercial Division. Be sure to submit proof of the underlying claim, damages, and proper service.
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