Unitrin Safeguard Insurance Company v. Ciro Della-Noce, et al.
Attorneys and Parties
Brief Summary
Insurance no-fault/provider litigation—civil procedure issues concerning service of process and default judgment vacatur.
The Supreme Court, New York County, denied defendants’ motion to vacate a default judgment, finding plaintiff’s service sufficient and leaving the default in place.
The Appellate Division reversed and vacated the default judgment as to Edward Mosquea and Wandy De La Cruz-Ramos.
Service on De La Cruz-Ramos was invalid under New York Civil Practice Law and Rules (CPLR) 308(2) [service by delivery to a person of suitable age and discretion at defendant’s dwelling place or usual place of abode, with follow-up mailing] because he had moved from the address prior to service and rebutted service with his affidavit and lease; plaintiff’s contrary proof consisted only of third-party documents. As to Mosquea, plaintiff failed to show the due diligence required to resort to nail‑and‑mail under CPLR 308(4) [permits affixing and mailing only after due diligence attempts at personal service], where all attempts occurred on weekday afternoons during normal business hours with no weekend or off-hour efforts and no inquiry into his whereabouts.
Background
Plaintiff Unitrin Safeguard Insurance Company obtained a default judgment in an insurance/provider dispute (Index No. 158834/22; Case No. 2024-06475). Defendants Edward Mosquea and Wandy De La Cruz-Ramos moved to vacate, arguing defective service. The motion was denied, and they appealed.
Lower Court Decision
By order entered on or about September 20, 2024 (Rosado, J.), the Supreme Court, New York County, denied defendants’ motion to vacate the default judgment, crediting plaintiff’s affidavits of service and declining to set aside the default.
Appellate Division Reversal
The Appellate Division held plaintiff made a prima facie showing of service via affidavits under CPLR 308(2), but De La Cruz-Ramos rebutted it with his sworn statement and a lease demonstrating he had moved before service. Plaintiff’s reliance on third‑party-created documents to show continued use of the address was insufficient, distinguishing cases where the defendant’s own documents supported service. Citing Feinstein v Bergner ("dwelling place" and "usual place of abode" are not equivalent to "last known residence"), the court deemed service a nullity and vacated the default as to De La Cruz-Ramos; no meritorious defense was required (Shaw v Shaw). For Mosquea, the court found a lack of due diligence to justify CPLR 308(4) nail‑and‑mail, where attempts were confined to weekday afternoons with no weekend/off‑hour attempts and no inquiry into his workplace, citing Board of Managers of 50 W. 127th St. Condominium v Kidd and Spath v Zack. The order was unanimously reversed, without costs, and the judgment vacated as to both defendants.
Legal Significance
The decision underscores strict compliance with service statutes: (1) service at a prior address is ineffective even if it was a defendant’s last known residence, and third‑party documents are insufficient to prove continued use absent the defendant’s own acknowledgments; (2) due diligence for nail‑and‑mail requires varied attempts (including nonbusiness hours/weekends) and reasonable inquiries into a defendant’s whereabouts; and (3) when service is defective, a meritorious defense need not be shown to vacate a default.
Improper service voids a default: evidence that a defendant moved rebuts CPLR 308(2) service, and limited weekday attempts without further inquiry will not satisfy CPLR 308(4) due diligence.