BARNES v. CITY OF NEW YORK, 51 N.Y.2d 906 (1980)

434 N.Y.S.2d 991, 415 N.E.2d 979

ALFRED BARNES et al., Appellants, v. CITY OF NEW YORK et al., Defendants, and ARTHUR SCHWARTZ et al., Respondents.

Court of Appeals of the State of New York.Argued October 9, 1980
Decided November 11, 1980

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, SALVATORE DE MATTEO, J.

Page 907

Ronald J. Koerner for appellants.

Steven B. Prystowsky for respondents.

MEMORANDUM.

The question before the court is whether the Appellate Division erred as a matter of law in finding that the “due diligence” requirement of CPLR 308 (subd 4) had not been met. Expressed another way, the question is whether, on the facts before us, there was demonstrated due diligence as a matter of law.

We note in passing that we do not construe the determination at the Appellate Division as having laid down any hard rule of law. Indeed, in determining the question of whether due diligence has been exercised, no rigid rule could properly be prescribed. Viewing this case on its facts, we conclude there was no error of law, and the order should be affirmed, with costs, and the certified question answered in the affirmative.

Page 908

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.

Order affirmed, with costs, and question certified answered in the affirmative in a memorandum.