The following numbered papers were used on this motion: NYSCEF Document Nos. 4-34.

Upon the foregoing papers and having heard oral argument on the record, the within motion is determined as follows.

Plaintiff filed this action on April 21, 2025, for personal injuries sustained in a motor vehicle accident occurring on October 6, 2022, on Coney Island Avenue between Avenue K and Avenue L in Brooklyn, NY. It is alleged that on the date in question, Defendant John Doe was the operator of a 2012 Ford Van, a commercial vehicle ("Van"), with the permission and consent of Defendants O21 Corp. ("O21"), U21 Corp. ("U21"), and UZI 2 Go Inc. ("UZI"), the owners of the Van. Plaintiff claims the accident resulted from the sole negligence of the Defendants, and Plaintiff asserts two causes of action: (1) negligence in causing the collision that resulted in Plaintiff's injuries, and (2) negligent hiring and retention of Defendant John Doe as the driver of the Van and the employee of Defendants O21, U21, and UZI. No police report was filed.

Plaintiff served Defendants O21, U21, and UZI on May 6, 2025, and attempted service [*2]on Defendant John Doe on May 6, 2025 and May 8, 2025, at a residential apartment complex and a store front, respectively. Plaintiff was unable to effect service on Defendant John Doe. Accordingly, Plaintiff seeks to serve the summons and complaint on Defendant John Doe, who remains unidentified, by serving same upon the Van's insurer, State Farm, by certified and regular mail, pursuant to CPLR 308 (5) and CPLR 306-b ^[FN1] . Defendant O21 filed an affirmation in opposition on June 19, 2025, asserting that Plaintiff failed to show due diligence as required under CPLR 308 (4).

Under CPLR 308 (5), a court may authorize service of process on a natural person "in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section" (see U.S. Bank N.A. v Ming Kang Low, 200 AD3d 1092 [2d Dept 2021]; see also Contimortgage Corp. v Isler, 48 AD3d 732, [2d Dept 2008]). The question of whether service is impracticable must be determined based on the specific facts and circumstances of each case (see MTGLQ Invs., L.P. v Mayers, 209 AD3d 1009 [2d Dept 2022]; see also Wells Fargo Bank, NA v Patel, 175 AD3d 1350 [2d Dept 2019]). A plaintiff seeking relief under CPLR 308 (5) is not required to demonstrate the heightened due diligence standard that CPLR 308 (4) demands (see Bayview Loan Servicing, LLC v Cave, 172 AD3d 985 [2d Dept 2019]; see also generally Cho v HJB of Bayside Corp., 239 AD3d 820[2d Dept 2025]).

Although CPLR 308 (5) does not require a heightened due diligence standard, the statute explicitly states that service must be impracticable under CPLR 308 (1), (2), and (4) before alternative service under CPLR 308 (5) is ordered, and courts have consistently held the same. Plaintiff cites to Simmons v Estrelle Auto Mall LLC (2022 NY Misc LEXIS 15870 [Sup Ct, Bronx County 2022]),^[FN2] Esposito v Ruggerio (193 AD2d 713 [2d Dept 1993]),^[FN3] and Dobkin v [*3]Chapman (21 NY2d 490 [1968])^[FN4] for the proposition "that a Doe Defendant may be served under CPLT [sic] 308(5) by service on defendant's insurer" (NYSCEF Doc No. 5, ¶ 5). These cases are distinct from the case at bar. In Simmons, Esposito, and Dobkin, the defendant was known to the plaintiff, and multiple service attempts were made using various methods (e.g., mail, posting, or email). Here, however, Plaintiff has not shown any effort to locate Defendant, nor have they asserted that they made any further effort during oral arguments on June 20, 2025. Plaintiff made only two service attempts, both within a two-day span and during similar hours, approximately between 2:00 p.m. and 3:00 p.m. Plaintiff has not met the necessary threshold, as there is no showing that service under the other three subdivisions was impracticable. Accordingly, Plaintiff's request to serve State Farm in lieu of serving Defendant John Doe is premature and unsupported.

While there is also no indication that Plaintiff attempted service by posting pursuant to CPLR 308 (4), to seek relief under CPLR 308 (5), an attempt or showing of impracticability under CPLR 308 (4) is required. To satisfy CPLR 308 (4)'s due diligence requirement, a plaintiff must show that the process server made genuine inquiries into the defendant's whereabouts and place of employment (see Niebling v Pioreck (222 AD3d 873, 875 [2d Dept 2023]). Although due diligence does not require exhaustive efforts, it generally entails multiple visits to the defendant's residence or place of business at different times when the defendant might reasonably be expected to be present (see Estate of Waterman v Jones (46 AD3d 63, 66 [2d Dept 2007]). In Creswell Invs., Ltd. v Brazil+Q1 Ltd. 234 AD3d 667 [2d Dept 2025]), the court found a lack of due diligence where the process server made only three attempts on consecutive days, all between 10:00 a.m. and 1:00 p.m. Likewise, in Niebling, the court held that two attempts at the defendant's home, without any inquiries into their whereabouts or employment, were insufficient. Akin to the plaintiffs in Creswell and Niebling, Plaintiff in this case made only minimal and inadequate efforts to serve Defendant John Doe, which would not suffice to seek relief under CPLR 308 (4). Courts have consistently held that service under CPLR 308 (5) is only permitted once the court determines that service under the other subdivisions is impracticable, and this would include CPLR 308 (4). Plaintiff has not attempted service under any of the other three methods with any effort nor explained in their papers why those methods could not be used. Therefore, Plaintiff's request to serve Defendant John Doe's insurer pursuant to CPLR 308 (5) is DENIED.

Under CPLR 306-b, service must be made within 120 days of starting the action. If not, the court must dismiss without prejudice or may extend the time for "good cause" or "interest of justice," which are separate standards (see U.S. Bank N.A. v Bindra, 217 AD3d 719 [2d Dept 2023], see also Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]). "Good cause" requires showing diligent efforts (see US Bank N.A. v Fink, 206 AD3d 858 [2d Dept 2022]). The [*4]"interest of justice" standard is broader and allows the court to consider extensions if there's no prejudice (see PNC Bank, N.A. v Sarfaty, 225 AD3d 721 [2d Dept 2024]). Granting an extension is discretionary (Bindra, 217 AD3d at 720).

In Countrywide Home Loans, Inc. v Lyons (219 AD3d 1404, 1406 [2d Dept 2023]), the court held that because the plaintiff filed their action, attempted service, and requested an extension timely and there was no prejudice to the defendant in granting the extension, the extension was rightfully granted. Similarly, here, although Plaintiff's attempts at service on Defendant John Doe were not sufficient to be granted the opportunity to serve under CPLR 308 (5), Plaintiff did attempt service twice. Further, there would be no prejudice to Defendant John Doe if an extension were granted. Therefore, Plaintiff's request to extend time to serve by 120 days pursuant to CPLR 306-b is GRANTED.

Accordingly, it is hereby ORDERED as follows:

(1) That branch of Plaintiff's motion pursuant to CPLR 308 (5) seeking leave to serve Defendant John Doe with the summons and complaint by serving the insurance company which issued the policy insuring the vehicle he drove is DENIED.

(2) That branch of Plaintiff's motion pursuant to CPLR 306-b seeking to extend the time to serve the summons and complaint on Defendant John Doe by 120 days is GRANTED, and the time to effectuate such service is extended to the 120th day following the date of entry of this Order.