Citibank loses 20-year-old Brooklyn foreclosure over botched service of process
That might have been the end of the story. It wasn’t.
The homeowner moved to vacate both orders and dismiss the case, arguing the court never had jurisdiction over him because he was never properly served. The Supreme Court, Kings County, denied that motion in August 2023. He appealed.
The Second Department sided with the homeowner.
Under New York’s CPLR 308, serving a person by affixing papers to their door and mailing a copy – what lawyers call “nail and mail” service under CPLR 308(4) – is a last resort. A plaintiff can only use it after showing that personal delivery under CPLR 308(1) and (2) could not be accomplished “with due diligence.”
Citibank’s process server fell short, the court found. The server attempted personal delivery only twice, both during weekday hours – when, the court noted, “it could reasonably have been expected that the defendant was either working or in transit to or from work.” There was also “no evidence that the process server made any genuine inquiries about the defendant’s whereabouts and place of business.”
