        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1024
CAF 14-01619
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, WHALEN, AND DEJOSEPH, JJ.


IN THE MATTER OF PAUL KADER, II,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MEGAN L. KADER, RESPONDENT-APPELLANT.


MUSCATO, DIMILLO & VONA, LLP, LOCKPORT (BRIAN J. HUTCHISON OF
COUNSEL), FOR RESPONDENT-APPELLANT.

MELISSA A. CAVAGNARO, ATTORNEY FOR THE CHILD, BUFFALO.


     Appeal from a corrected order of the Family Court, Niagara County
(John F. Batt, J.), entered July 18, 2014 in a proceeding pursuant to
Family Court Act article 6. The corrected order denied the motion of
respondent to vacate a default order granting petitioner sole custody
of the subject child and to dismiss the petition for custody.

     It is hereby ORDERED that the corrected order so appealed from is
unanimously reversed on the law without costs, the default order is
vacated, and the petition is dismissed.

     Memorandum: In this proceeding pursuant to Family Court Act
article 6, respondent mother appeals from a corrected order that
denied her motion seeking to vacate a default order granting
petitioner father sole custody of their child, and to dismiss the
father’s petition for custody. After the parents’ relationship ended
in December 2012, the mother and the child resided with the child’s
maternal grandmother. In February 2013, the mother ceased
communicating with the father and denied him visitation with the
child, and the father filed a petition for custody in April 2013.
During business hours on three weekdays in May 2013, the process
server unsuccessfully attempted to serve process on the mother at the
grandmother’s apartment. After the third attempt, the process server
used the “nail and mail” method of service at the grandmother’s
apartment. The grandmother testified at a hearing, however, that the
mother had moved to Maryland in March 2013. The mother and the
Attorney for the Child contend that Family Court erred in denying the
mother’s motion inasmuch as the court did not obtain personal
jurisdiction over her by the “nail and mail” method of service because
the father failed to meet the due diligence requirement of CPLR 308
(4). We agree, and we therefore reverse the corrected order, vacate
the default order, and dismiss the petition for custody.
                                 -2-                          1024
                                                         CAF 14-01619

     CPLR 308 (4) allows the “nail and mail” method of service only
“when service pursuant to CPLR 308 (1) and (2) cannot be made with due
diligence” (Austin v Tri-County Mem. Hosp., 39 AD3d 1223, 1224; see
Interboro Ins. Co. v Tahir, 129 AD3d 1687, 1688-1689). “[A]lthough a
process server’s affidavit of service ordinarily constitutes prima
facie evidence of proper service, here the process server’s affidavit
submitted by plaintiff fails to demonstrate the requisite due
diligence” (Interboro Ins. Co., 129 AD3d at 1688-1689; see D’Alesandro
v Many, 137 AD2d 484, 484; see generally Matter of El Greco Socy. of
Visual Arts, Inc. v Diamantidis, 47 AD3d 929, 929-930). Specifically,
the affidavit of service did not contain any averment whether the
process server had made an attempt to effectuate service at the
mother’s actual “dwelling place or usual place of abode” (CPLR 308
[4]), or whether he had made genuine inquiries to ascertain the
mother’s actual residence or place of employment (see Prudence v
Wright, 94 AD3d 1073, 1074; Earle v Valente, 302 AD2d 353, 353-354).
While the process server attempted to serve the mother on Friday, May
10, 2013, at 11:50 a.m., Monday, May 13, 2013, at 9:30 a.m., and
Tuesday, May 14, 2013, at 1:30 p.m., “[t]hose three attempts at
service, all on weekdays during normal business hours, did not satisfy
the due diligence requirement [of CPLR 308 (4)]” (Austin, 39 AD3d at
1224).

     In light of our determination, we do not reach the mother’s
alternative contention.




Entered:   October 9, 2015                      Frances E. Cafarell
                                                Clerk of the Court
