The following papers numbered 1 to 2 were read on this motion:

Kelly F. Atkinson brings her motion seeking to vacate the now-over $7,300 judgment entered on default on April 15, 2008. The process began with an arbitration proceeding at which Ms. Atkinson did not appear. Thereafter, plaintiff moved to confirm the award, and again Ms. Atkinson defaulted. In July 2025, Ms. Atkinson's bank account was frozen, and she filed this motion pro se.

Ms. Atkinson and counsel for plaintiff appeared in Court on her Order to Show Cause on August 13, 2025. Ms. Atkinson stated on the Record that she has not used the surname Reilly for many years before the commencement of the arbitration and this action, not since her divorce in June 2003. Ms. Atkinson stated that she moved out of Westchester in 2007. More importantly, Ms. Atkinson stated that she had never lived at the address at which she was [*2]purportedly served. That address, a large apartment building in Hartsdale, was the home of her former mother-in-law. Ms. Atkinson, even when she was Ms. Reilly, had never lived at that address.

In opposition to the motion, plaintiff submitted papers, including many exhibits, to the Court. A review of those papers shows that there is no affidavit of service showing where Ms. Atkinson was served with the arbitration proceeding. The Court thus cannot determine whether service on her was at the incorrect Hartsdale address or elsewhere. Plaintiff also failed to submit to the Court the original contract between its predecessor and defendant. Ms. Atkinson stated to the Court on the Record that she did not know what company originated the dispute; the arbitration was initiated by a subsequent purchaser, plaintiff herein.

Among the documents plaintiff submitted to the Court, there is a copy of the National Arbitration Forum award dated January 3, 2007. It is addressed to Kelly F. Reilly at the Hartsdale address of Ms. Atkinson's former mother-in-law. It states that the parties entered into an agreement to arbitrate their dispute "on or before 3/24/2006"—a date nearly three years after Ms. Atkinson's divorce, when she was no longer using the name Reilly. The award does not state how the debt arose or what company entered into this agreement with defendant. It is thus impossible to tell whether the debt arose from, for example, a credit card transaction, unpaid rent, medical debt or something else. Although plaintiff submitted to the Court evidence of the transfer of the account multiple times, these assignments are all literally decades after the judgment, so they shed no light on the source of the dispute.

After plaintiff received the arbitration award, it filed this special proceeding to confirm it. The affidavit of service of the notice of petition and petition shows that it was purportedly served on defendant at the Hartsdale address of her former mother-in-law by "nail and mail" service. This section requires that a process server first attempt personal service with "due diligence" before resorting to "nail and mail" service. The Second Department "has repeatedly emphasized that the due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received. What constitutes due diligence is determined on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but on their quality." McSorley v. Spear, 50 AD3d 652, 653, 854 N.Y.S.2d 759, 760—61 (2d Dept. 2008).

A review of the affidavit of service shows that only four attempts were made to serve defendant, two of which were during the day, and all of which were between December 29, 2007 and January 3, 2008, a time when many people are away or out celebrating the holidays. "A mere showing of several attempts at service at either a defendant's residence or place of business may not satisfy the due diligence requirement before resort to nail and mail service. However, due diligence may be satisfied with a few visits on different occasions and at different times to the defendant's residence or place of business when the defendant could reasonably be expected to be found at such location at those times. 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." Est. of Waterman v. Jones, 46 AD3d 63, 66, 843 N.Y.S.2d 462, 464-65 (2d Dept. 2007).

Plaintiff made no such showing here. All that the process server says about attempting to ascertain defendant's address is that "Address confirmed by a neighbor, Mr. Cobb" at what appears to be another part of the same large apartment complex where Ms. Atkinson's former mother-in-law resided. There is no indication that the process server attempted to learn Ms. [*3]Atkinson's actual residence or her place of employment. Indeed, as she stated on the Record, she had already moved out of Westchester by the time of the alleged service, and she worked in Rockland at the time.

As the Second Department has explained, service is not effectuated when all of the attempts are on "on weekdays and between the hours of 9 A.M. and 6 P.M., times when it would be expected that [defendant] would be either working or commuting to or from work. Additionally, the process server's statement as to any attempts he made to ascertain the place of employment of [defendant] were, at best, conclusory and ambiguous, and insufficient to show that the necessary inquiry was made." Leviton v. Unger, 56 AD3d 731, 732, 868 N.Y.S.2d 126, 127 (2d Dept. 2008). In this action, the process server made no attempt whatever to ascertain defendant's place of employment.

Having reviewed all of the exhibits submitted by plaintiff, the Court is troubled by the lack of information about the original contract between defendant and plaintiff's predecessor; the lack of information about the service of the arbitration documents; the fact that the arbitration award was sent to defendant at an address at which she never lived; the lack of due diligence with the service of the notice of petition; the use of an incorrect address for that improper service; and the fact that there is no way to demonstrate that Ms. Atkinson is the actual judgment debtor.^[FN1]

Accordingly, the Court grants the motion and vacates the Judgment against defendant/Ms. Atkinson. Plaintiff shall serve a copy of this Decision and Order on Ms. Atkinson by overnight mail within three business days of receipt, at the address set forth below. Plaintiff shall also take all steps necessary to vacate the Judgment because Ms. Atkinson is pro se.

The foregoing constitutes the decision and order of the Court.