Opinion
December 20, 1989
Appeal from the Supreme Court, Erie County, Gossel, J.
Present — Dillon, P.J., Callahan, Denman, Balio and Lawton, JJ.
Order unanimously reversed on the law without costs, defendant's motion granted and complaint dismissed. Memorandum: In this dental malpractice action, defendant appeals from an order dismissing his affirmative defense of lack of jurisdiction. He contends that the action was not properly instituted because, in the circumstances presented, the process server was not authorized to use "nail and mail" service pursuant to CPLR 308 (4). We agree.
"Nail and mail" service pursuant to CPLR 308 (4) may be made only when service under CPLR 308 (1) and (2) cannot be made with due diligence (CPLR 308; see also, McLaughlin, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C308:4, 1990 Supp Pamph). Under CPLR 308 (2), personal service may be made by delivering the summons "to a person of suitable age and discretion at the actual place of business * * * of the person to be served" and by satisfying the mailing requirements of the subdivision. Here, accepting the affidavit and testimony of the process server as true, she had several opportunities to serve a person of "suitable age and discretion" at defendant's offices, and failed to do so. Whether defendant's employees agreed or refused to accept service is irrelevant because the delivery requirement may be met by leaving the summons in the general vicinity of a person who resists service (see, Bossuk v Steinberg, 58 N.Y.2d 916, 918). Since service under subdivision (2) could have been made with due diligence, substituted service under subdivision (4) was not authorized (see, Matter of Galuski v Tutunjian, 133 A.D.2d 480, lv denied 70 N.Y.2d 606; Rossetti v DeLaGarza, 117 A.D.2d 793; Weinberg v Hillbrae Bldrs., 58 A.D.2d 546; Levin v McGovern, 53 A.D.2d 1042). Accordingly, jurisdiction was not obtained over defendant and the action must be dismissed.