Appeals from orders of the District Court of Suffolk County, First District (James P. Flanagan, J.), dated July 8, 2005 and August 17, 2005. The order dated July 8, 2005 deemed a motion by plaintiffs to "reargue" a prior motion by defendant to open his default in answering and to dismiss, to be a motion to "renew" the prior motion, and adjourned the motion for 20 days. The order dated August 17, 2005, insofar as appealed from as limited by defendant's brief, upon granting plaintiffs' motion for leave to "renew," denied so much of defendant's motion as sought to dismiss the complaint based on lack of jurisdiction.

Appeal from order dated July 8, 2005 dismissed.

Order dated August 17, 2005, insofar as appealed from, reversed without costs and defendant's motion to dismiss the complaint granted.

Plaintiffs commenced this action in December 2004 to recover a security deposit. In April 2005, defendant moved to open his default in answering and dismiss the complaint on the ground that the court below lacked personal jurisdiction over him. In May 2005, defendant's motion was granted on default and the action was dismissed. By notice of motion returnable in June 2005, plaintiffs moved for leave to "reargue" the May 2005 order and for entry of a default judgment against defendant, arguing that defendant was properly served at his place of business or dwelling place. Thereafter, defendant informed the court that although his former attorney had received a copy of plaintiffs' motion, he had not been served with a copy of the motion. By order dated July 8, 2005, the court deemed plaintiffs' motion to be one for renewal and adjourned the motion. Defendant subsequently filed opposition papers. By order dated August 17, 2005, the [*2]court granted plaintiffs' motion to renew and denied the branch of defendant's motion seeking to dismiss the complaint based on lack of jurisdiction. The instant appeals by defendant ensued.

The appeal from the July 8, 2005 order is dismissed because said order did not finally decide the motion and is not appealable as of right (UDCA 1702 [a] [2] [v]; see Kaplan v Rosiello, 16 AD3d 626 [2005]).

In its August 17, 2005 order, the court below found that service of the summons and complaint upon defendant at an address on Woodland Road in Centereach, N.Y. constituted service at defendant's actual place of business and that the court therefore acquired personal jurisdiction over defendant. Thus, the branch of defendant's motion seeking to dismiss the complaint was, in effect, denied. In an affidavit in support of his motion to open his default in answering and to dismiss the complaint, defendant had stated that he was "the owner of the premises located at . . . Woodland Road . . . . Said premises had previously been rented by Plaintiffs. Said property is an investment property and is not my residence or usual dwelling place." In addition, the lease agreement that defendant had with plaintiffs, who had leased the Woodland Road property, listed his address in Middle Village, Queens as the place at which to serve notices. Plaintiffs argued in opposition that defendant was properly served at his dwelling place or his place of business. Defendant replied that the Woodland Road address was neither his dwelling place nor his actual place of business and that he had no place of business. The court below determined that "defendant's own statements make it clear that service of the summons and complaint was made at his actual place of business, and that personal jurisdiction was obtained over him."

Contrary to the determination of the court below, we find that none of defendant's statements indicate that the Woodland Road address was his actual place of business. Nor was there any other evidence that the subject residential investment property was in fact defendant's actual place of business (see Katz v Emmett, 226 AD2d 588 [1996]), and the record on appeal does not indicate that defendant, through regular solicitation or advertisement, held the Woodland Road address out as his actual place of business (see CPLR 308 [6]). Since there was likewise no evidence that the premises was defendant's dwelling place or usual place of abode, we find that service at that address was insufficient to acquire jurisdiction over defendant.

Moreover, even assuming that the Woodland Road address qualified as defendant's actual place of business, the process server, in his amended affidavit of service, failed to demonstrate compliance with the statutory requirement that he exercise due diligence before serving defendant by "nail and mail," since he only made one attempt at service during normal business hours (see e.g Lembo & Sons v
Robinson 99 AD2d 872 [1984]). For these reasons, we find that the court below did not acquire personal jurisdiction over defendant and, therefore, dismiss the complaint.

Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: October 5, 2006