In the complex realm of legal process, an emerging topic of discussion is the necessity of “due diligence” when performing “affix and mail” service (or “nail and mail” as it’s colloquially known). This unconventional method of service under CPLR § 308(4) has recently sparked some dispute, particularly regarding what constitutes adequate diligence.
The burden of establishing personal jurisdiction over a defendant lies with the plaintiff. Service of process is vital to this, remaining incomplete until proof of service is filed. Interestingly, defective service of process is not considered a jurisdictional defect and typically does not justify dismissal. However, when it pertains to affix and mail service, the due diligence statutory component must be strictly observed or it may lead to dismissal.
Such was the focus of a recent article on JD Supra, which questioned: how diligent must one be in an affix and mail service for it to be deemed legally complete?
Given the potential detriment that a dismissal can generate for the plaintiff, particular attention must be paid to this requirement. As it stands, there remains a lack of clarity surrounding the defined benchmark for diligence, and this ambiguity can lead to potentially undesired outcomes for plaintiffs.
After all, the essence of service is to ensure fair notice to all parties involved. If the defendant isn’t apprised of the litigation in due time, it can disrupt the entire case’s dynamics. Thus, section 308(4) of the civil practice law and rules with its strict adherence to diligence could be seen not as an imposition, but as a safeguard against the potential inherent mess that comes with this method of service.
For any legal professionals tasked with establishing jurisdiction in a case, this evolving topic undoubtedly warrants close attention and careful scrutiny to ensure adherence to all applicable standards.