Cancilla v. Vukosa
Justice David Schmidt
Cancilla plaintiffs moved for an order of civil contempt against the Vukosa defendants for their failure to respond to an information subpoena. The Vukosas cross-moved to vacate the default judgment entered against them. Cancillas sued for damages for personal and derivative injuries alleging a defective and dangerous condition in an apartment due to the Vukosas' negligent operation and maintenance of the premises. The court found the process server unsuccessfully attempted to personally deliver a summons and complaint to the Vukosas at their shared residence on three consecutive weekdays, and then affixed a copy of the summons and complaint to the front door, mailing a copy to the same address. Yet, it stated the process server did not make any inquiries about defendants' work schedules or their respective business addresses. Thus, the court concluded plaintiffs failed to establish they exercised due diligence in attempting to effectuate service under CPLR 308(1) or (2) before using the "nail and mail" method under §308(4). Hence, it granted the Vukosas cross-motion to vacate the default judgment against them. In light of the vacatur, plaintiffs' right to discovery sought in the information subpoena no longer existed, and the contempt application was denied.