- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- Castro v. Castro
- Docket
- 2024-00863
- Filed
- May 27, 2026
- Slip Op
- 2026 NY Slip Op 03287
- Citation
- 2026 NY Slip Op 03287 (N.Y. App. Div. 2d Dep’t 2026)
Background
Alejandro Castro commenced an action pursuant to RPAPL article 15 to quiet title to real property located in Floral Park against his brother, John C. Castro. The plaintiff alleged that he contributed $310,000 toward the purchase of the property based upon John Castro’s representations that both brothers would be equal owners as tenants in common. The plaintiff further alleged that John Castro, who was an attorney representing the plaintiff in connection with the purchase, secretly purchased the property in his own name alone with no recorded interest held by the plaintiff. Both brothers had resided at the property since May 2015.
According to an affidavit of service, John Castro was served with the summons and complaint pursuant to CPLR 308(4) — the “nail and mail” method — by affixing a copy to the door of the property (his place of abode) on June 5, 2018, followed by mailing a copy to the same address the next day. After John Castro failed to timely answer or appear, the plaintiff moved for leave to enter a default judgment. Despite John Castro’s opposition, the Supreme Court granted the motion and entered a default judgment declaring the plaintiff a 50% owner of the property and directing that the deed be reformed to reflect his one-half interest.
John Castro subsequently moved pursuant to CPLR 5015(a)(4) to vacate the default judgment for lack of personal jurisdiction, arguing that service of process was defective. The Supreme Court denied the motion, and John Castro appealed.
Holding
The Appellate Division, Second Department reversed the order, granted John Castro’s motion to vacate the default judgment, and remitted the matter for further proceedings. The court found that the plaintiff failed to satisfy the prerequisites for “nail and mail” service under CPLR 308(4).
The court explained that CPLR 308(4) service — affixing the summons to the door of the defendant’s place of abode and mailing a copy — is available only as a last resort when service under CPLR 308(1) (personal delivery) and CPLR 308(2) (delivery to a person of suitable age and discretion) cannot be made with “due diligence.” The court emphasized that due diligence requires genuine effort, including multiple attempts at varying times at the defendant’s place of business, dwelling, or usual place of abode.
Here, since both brothers lived at the same property, the court found that the plaintiff could have served the defendant under CPLR 308(1) or (2) but failed to exercise due diligence before resorting to “nail and mail” service. Because the prerequisites for CPLR 308(4) were not met, service was jurisdictionally defective, and the Supreme Court never acquired personal jurisdiction over John Castro. The default judgment was therefore a nullity.
Takeaways
This decision provides important guidance on the due diligence requirement for CPLR 308(4) service. Practitioners must exhaust service options under CPLR 308(1) and (2) before resorting to “nail and mail” service, and courts will scrutinize whether genuine efforts were made to accomplish personal or substituted service. The fact that the plaintiff and defendant lived at the same address made the deficiency particularly glaring — if a plaintiff lives with the defendant, personal service should be readily achievable.
The case also underscores that a default judgment obtained without proper service is void for lack of jurisdiction under CPLR 5015(a)(4), and there is no time limit on a motion to vacate on jurisdictional grounds. Unlike motions under CPLR 5015(a)(1), which require a showing of reasonable excuse and a meritorious defense, a jurisdictional challenge under CPLR 5015(a)(4) need only establish that the court never obtained jurisdiction.
Practitioners should also note the court’s handling of the procedural posture: the notice of appeal from the declaratory portion of the order was deemed an application for leave to appeal under CPLR 5701(c), which the court granted. This is a useful procedural mechanism when an appeal as of right may not lie from a particular aspect of an order.
Why It Matters
This case is a significant reminder that proper service of process is the foundation of personal jurisdiction in New York. No matter how strong a plaintiff’s substantive claims may be, a judgment obtained through defective service will not withstand scrutiny. The decision reinforces the principle that “nail and mail” service is a method of last resort, not a shortcut for parties who find personal service inconvenient.
For real property practitioners, the case is particularly noteworthy. Actions to quiet title under RPAPL article 15 often involve family disputes and properties where parties may reside together. In such circumstances, counsel must ensure that service of process is beyond reproach, as the opposing party will have strong incentive to challenge jurisdiction. A judgment reforming a deed can be overturned years later if the underlying service was defective, potentially requiring the entire litigation to be relitigated from scratch.