PROCESS SERVER LACKED DILIGENCE

In McSorley v. Spear, Kay L. Spear appealed a Westchester County Supreme Court decision which denied her request to dismiss a civil case that had been filed against her.

A process server attempted to deliver a copy of the summons and complaint to Spear at her home and apparently made three weekday attempts before resorting to conspicuous-place -- or “nail and mail” -- service authorized by state law. (CPLR 308(4)).

Because the process server neglected to ascertain her place of business, Spear claimed that the process server didn’t exercise “due diligence” before posting and mailing the papers and that the court thus lacked "jurisdiction" -- or power -- over her.

On appeal, the Appellate Division, Second Department, noted that this “due diligence” standard is to be "'strictly observed'" and must be examined "on a case-by-case basis" -- which means that service attempts made will rise or fall on the unique facts and circumstances of every dispute.

In this instance, the process server’s failure to make "'genuine inquiries about [Spear’s] whereabouts and place of employment'” mandated the case's dismissal.

If you ask us, this McSorley got Speared!