Castro v. Castro
Attorneys and Parties
Brief Summary
Real property and civil procedure, involving a quiet title claim under Real Property Actions and Proceedings Law (RPAPL) article 15 [action to quiet title to real property] and whether service of process was valid before a default judgment was entered.
The Supreme Court, Queens County, denied John C. Castro's motion under New York Civil Practice Law and Rules (CPLR) 5015(a)(4) [vacatur of a judgment for lack of jurisdiction] to vacate the 2019 order and judgment, which had granted the plaintiff a default judgment and declared the plaintiff a 50% owner of the property.
The Appellate Division reversed the order insofar as appealed from, granted vacatur of the default order and judgment, vacated the denial as academic of the plaintiff's cross-motion under CPLR 306-b [extension of time for service], and remitted for further proceedings.
Service under CPLR 308(4) [affix-and-mail service after due diligence attempts at personal or substitute service] was defective because the plaintiff did not show due diligence before using nail-and-mail service. The process server made only two prior attempts at the residence, made no genuine inquiries into the defendant's whereabouts or place of employment, and did not attempt service at the defendant's known work address.
Background
In 2018, Alejandro Castro sued, among other things, to quiet title to a Floral Park property. He alleged that he contributed $310,000 toward the purchase based on John C. Castro's representation that they would own the property equally as tenants in common, but that John C. Castro, who was also the plaintiff's attorney in the transaction, took title solely in his own name. Both men allegedly lived at the property. The plaintiff claimed service was made on John C. Castro under CPLR 308(4) by affixing the summons and complaint to the property door on June 5, 2018, and mailing them the next day.
Lower Court Decision
After John C. Castro failed to timely answer or appear, the Supreme Court entered an order and judgment on December 16, 2019, granting a default judgment against him, declaring that the plaintiff owned a 50% interest in the property as a tenant in common, and directing reformation of the deed to reflect that interest. Later, when John C. Castro moved under CPLR 5015(a)(4) to vacate for lack of jurisdiction, the Supreme Court denied that branch of the motion and denied the plaintiff's CPLR 306-b cross-motion as academic.
Appellate Division Reversal
The Appellate Division held that the plaintiff failed to establish the due diligence required before resorting to CPLR 308(4). Although the process server claimed two prior attempts at the residence, the record showed no genuine inquiry into the defendant's whereabouts or employment and no attempt to serve him at his known place of work. Because service was jurisdictionally defective, the default judgment had to be vacated under CPLR 5015(a)(4). The court remitted the matter for the Supreme Court to decide the plaintiff's CPLR 306-b cross-motion on the merits and, if that motion is denied, to decide the defendant's request, in effect under CPLR 3211(a)(8) [dismissal for lack of personal jurisdiction], to dismiss the complaint insofar as asserted against him.
Legal Significance
This decision reinforces that New York courts strictly enforce the due diligence requirement for CPLR 308(4) service. A plaintiff cannot rely on minimal attempts at a residence alone where other reasonable avenues, especially a known business address, are available. Without proper service, a default judgment is void for lack of personal jurisdiction and must be vacated.
Before using nail-and-mail service under CPLR 308(4), a plaintiff must make meaningful efforts to locate and personally serve the defendant, including inquiry into known employment information. Failure to do so can invalidate service and undo a default judgment even years later.