Kelly v Magarie

Holding The court affirmed the dismissal of the complaint for lack of personal jurisdiction because the plaintiff failed to demonstrate that the process server exercised due diligence before resorting to affix and mail service. The process server’s testimony regarding inquiries into the defendant’s employment was deemed insufficient to satisfy the legal requirements for valid service under CPLR 308(4).

The court’s words

the process server's vague testimony was insufficient to satisfy the plaintiff's burden of demonstrating that the process server exercised due diligence

2026 NY Slip Op 05945, at the official text

the record does not reflect a basis to disturb the hearing court's determination that the plaintiff failed to demonstrate by a preponderance of the evidence

2026 NY Slip Op 05945, at the official text

the defendant sufficiently rebutted the presumption of proper service by submitting, inter alia, affidavits from himself, his wife, and his mother

2026 NY Slip Op 05945, at the official text