By notice of motion filed on February 7, 2011 plaintiff has moved under motion sequence number three for an order: (1) granting, among other things, a default judgment pursuant to CPLR 3215 against defendants Dorothy Sawo and Margaret Williams (hereafter "Sawo" and "Williams") for the relief sought in the amended complaint; (2) amending the caption, nunc pro tunc, to delete the name of Citi Residential Lending (hereinafter "CRL") as a party defendant; (3) and appointing a referee to compute.

No defendant has opposed the motion.

OnApril 23, 2008, plaintiff commenced this action by filing a summons and complaint with the Kings County Clerk's office. The complaint alleges that Sawo and Williams are fee simple owners of a condominium unit Unit 1E (hereinafter the subject premise) located at 1500 Bedford Avenue, Brooklyn, New York in the condominium [*2]complex known as 1492-1495-1500 Bedford Avenue Condominium). Plaintiff further alleges that defendants Sawo and Williams owe unpaid maintenance in the amount of $9,338.82 through April 30, 2008 due on the subject premise.

Plaintiff's motion papers contain an affirmation of plaintiff's counsel and an affidavit of Glen Williams, plaintiff's managing agent, and four annexed exhibits labeled A through D. Exhibit A is the instant summons and complaint. Exhibit B is a stipulation between plaintiff and CRL in which plaintiff agrees to discontinue the action against CRL. Exhibit C is a copy of a prior decision and order by this court dated March 31, 2009 which denied plaintiff's motion under motion sequence number one for failure to comply with the due diligence requirements of CPLR 308(4). Exhibit D contains two affidavits of service of the summons and complaint upon defendants Sawo and Williams. The affidavits of service were signed on May 11, 2009.

Plaintiff's application to delete CRL as a defendant in the instant action is granted as unopposed. The court must deny the part of plaintiff's motion which seeks a default judgment and an order of reference against Sawo and Williams pursuant to CPLR 3215 based on plaintiff's failure to comply with the due diligence requirements of CPLR 308(4).CPLR 308 sections (1), (2) and (4) provide in pertinent part as follows:

Personal service upon a natural person. Personal service upon a natural person shall be made by any of the following methods:

1. by delivering the summons within the state to the person to be served; or

2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, ...

4. where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of [*3]business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later; service shall be complete ten days after such filing, ...CPLR 306-b. Provides in pertinent part as follows:

Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause shall be made within one hundred twenty days after the filing of the summons and complaint, summons with notice, third-party summons and complaint, or petition, provided that in an action or proceeding, except a proceeding commenced under the election law, where the applicable statute of limitations is four months or less, service shall be made not later than fifteen days after the date on which the applicable statute of limitations expires. If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.

By prior decision and order dated March 31, 2009, this court denied plaintiff's prior application for an order of reference. The denial was based on plaintiff's service of the summons and complaint pursuant to CPLR 308(4) back in May of 2008, without showing that service could not be made with due diligence pursuant to CPLR 308(1) and (2).

In May of 2009, the plaintiff made a second attempt to serve defendant's Sawo and Williams and offered proof of that second attempt to support the instant application for a default judgment and an order of reference. There are several problems with the second attempt of service.

First, the second attempt occurred more than twelve months afterApril 23, 2008, the date the instant action was commenced. Pursuant to CPLR 306-b service of the summons and complaint must be made within one hundred twenty days after the filing of the summons and complaint. Furthermore, if service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service. The plaintiff did not make a motion to extend the time to serve the defendants. The second attempt at service is therefore a nullity until such time as plaintiff seeks and is granted leave to extend the time to serve these defendants.

Secondly, the affidavits of plaintiff's process server demonstrates that he made [*4]three attempts to personally serve the summons and complaint upon Sawo and Williams in 2009. The first attempt was made on May 7th at 6:50 a.m.; the second was made on May 8th at 7:17 p.m.; and the third was made on May 9th at 2:25 p.m. Each of these attempts was made at 1500 Bedford Avenue, Unit 1E, Brooklyn, New York which the plaintiff's process server alleged was the defendants' dwelling place or usual abode. Each of the affidavits of service further indicates that on May 9, 2009 at 2:25 p.m. a copy of the summons and complaint was affixed to the door of the aforesaid address; and, a copy was mailed to Sawo and Williams at this address on May 11, 2009. The affidavit of service for these attempts was filed with the clerk of the court on September 22, 2009.

Plaintiff may only resort to service pursuant to CPLR 308(4) where service pursuant to CPLR 308(1) and (2) cannot be made with due diligence (County of Nassau v. Letosky, 34 AD3d 414, 824 N.Y.S.2d 153 [2d 2006]). The affidavit of the plaintiff's process server, together with the papers submitted with the instant motion failed to demonstrate that the process server attempted to ascertain the business address of Sawo or Williams and to effectuate personal service at that address pursuant to the provisions of CPLR 308(1) and (2) (County of Nassau v. Long, 35 AD3d 787, 826 N.Y.S.2d 739 [2d 2006]). For the purpose of satisfying the "due diligence" requirement of CPLR 308 (4), it must be shown that the process server made genuine inquiries about the defendant's whereabouts and place of employment (see Sanders v. Elie, 29 AD3d 773, 774, 816 N.Y.S.2d 509 [2d 2006]). This specific deficiency also existed in plaintiff's first attempt at service back in 2008. This deficiency was pointed out in the court's decision and order dated March 31, 2009 as part of the reason for denying the prior application.

Thirdly, CPLR 308(4) requires that proof of service in this manner must be filed with the clerk of the court within twenty-days of affixing or mailing and service shall be complete ten days after such filing. The second attempt at service occurred in May of 2009, however, the affidavits of service were not filed with the Kings County Clerk's office until September 22, 2009, more than three months later.

For all the foregoing reasons plaintiff's application for a default judgment pursuant to CPLR 3215 against defendants Sawo and Williams and for the appointment of a referee to compute must be denied.

The foregoing constitutes the decision and order of this court

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J.S.C.