service of process was proper which is obviously a threshold issue and then if so was a motion to make the vacate or the defendant's default made timely and if that was so was the defendant's  service was made with the least desirable method of all under state law which is sepia law three a way to subdivision for of course the plaintiff must make diligent efforts and that phrase is strictly construed as as has held by the court of appeals in the state of new york and repeatedly by this court as well there must be strict compliance with the statute because the service is the least likely to provide actual no this particular issue was not raised in the district court yes you're correct and the reason i was not counsel at the time and the reason i believe it's probably before this court is because it is solely a matter of law and it relates to the courts jurisdiction if the quote lacks the jurisdiction of course it shouldn't act any further in the matter should be dismissed so it really is a threshold issue the issue of the validity of process was raised but you're correct your honor this particular aspect of the of this service was not but i believe the court should consider it for the reasons i just stated the it's the process service affidavit of service appears on in the appendix at page thirteen it alleges two prior attempts at service before the posting and there is a space for the  at the center of the page in capitals yes ok you go down further and it says that the defendant made prior diligent efforts to effect personal service upon said defendant at the above address to which and it lists two dates and you see the way the dates are written it's with the month with the slash of the year i mean that the day with a slash and then the year and then the next two slashes that you're talking about yes yes until so you'll see the first date is june seventeenth two thousand and five a ten twenty am the second date is july five two thousand and five at seven o'clock am and then the third day you'll see two slashes  day it says i just july sixth you serve the true copy by fixing the same to the door of the defendant said residence since admittance couldn't be obtained upon reasonable application but it doesn't say when the only dates that he shows he made reasonable application to gain admittance was on the first two days now you and i would both assume i believe everyone would assume that a process server wouldn't go to the door and just post a notice and leave but it doesn't say that you have to go by what it says and even without that particular argument there are other reasons why service is defective if for any reason we had to remain on this and henri man it was  that third on the nail and nail date there was also an attempt at personal design is that the end of your no your honor and judgment because there are other reasons there are at least four other reasons why service was defective in this case for example service should be attempted on nine consecutive dates his service was made on july fifth international to be no no the courts have all said including this court that it's a case by case determination and it wouldn't of the circumstances it might if there were other things together with it standing alone i don't think it would any more than many things standing alone would for example you have to make multiple attempts there were cases where  made six attempts but there were other defects so you have to look at the whole case you have to look at all the efforts that the process server made here there were other cases that say an attempt should be made at least once on a weekend there was no service on a weekend there were cases that i cited and my adversary hasn't even responded to those cases or shown any of them a corrected you should not make service immediately following a holiday this was service was allegedly made on july fifth the day after the fourth of july in the summer time chilled that in the lower court you argued that she didn't even live with this address yes that i didn't know i did that but by predecessor did and i'm abandoning that i'm not i'm not alleging that i'm not saying that which she said is not true i'm just saying she did not establish that i believe he that the process server made diligent attempts to determine the address so whether she actually resided there or not i don't believe it's determinative because she could have multiple residences and i'm not claiming in this appeal that service is defective because of the wrong address so in the time remaining can you change churned her there were charges to fans can you tell me what it is yes  just want to make one other point and very briefly the service also has to be made during non working hours and counsel claimed that specious argument in this case because she was she claimed to be a housewife but this court held and i think judge newman was on the panel together with mclaughlin that that is not the issue the issue is whether the process server made diligent attempts it's not even in that case which was cited by my adversary on page twenty one of his brief there was actual notice and there was attempts to evade service and that was held to be an irrelevant it's really the price of service diligent attempts but to address your point your honor first of all the motion was timely made as the lower court  requires an awareness and lastly to get to your point which is what is her defense her defense is that she had no contractual relationship with this man she denied it and paid in part didn't she know the claim is that she paid in part she receipt of funds from a third party law firm who said that they didn't represent her and she claimed that they were not her her agent she denied pain pain they claimed that she paid and you tell us that law firms role in this case i really don't know really i honestly don't know i know the underlying facts are very colorful and but i really not related to her brother was incarcerated for eight hundred forty five years for horrible acts but that has nothing to do with the validity of services no doubt money went from the firm to the british and it's a list i have no knowledge but they've established that i believe the documentary evidence that she hasn't refuted that we don't know in this record why that firm sent it that's correct my predecessor made all kinds of allegations and all kinds of claims which i don't subscribe to that there was collusion that there was of all kinds of fraud i have no idea and i don't think she could make those claims one of your clients i didn't ask because i honestly don't think no i honestly didn't because what  i how could i raise it on the appeal had she told me whatever she told me just thought you'd have been curious though i am curious but i thought that since i couldn't raise it on the appeal what's the point i can't use it would be the first time we learn something during well i try i try pepper and tapper wire him the money that's disputed isn't it she never denied this she doesn't say anything about it she just says and i don't know it's a very tricky after they want she is after saying they weren't my lawyers that's all she says in the law some it's an affidavit saying we don't represent her but the law firm doesn't say we never wired money or we were never told to wire money so garner says at the meeting in vienna he was told by leftwards he would be getting money from tougher and tougher how do you see why why do you say they the firm sent the money they were acting as her agent for whatever reason she wanted them to wire and on and what were the circumstances that made her made them her agent but they wired the funds on what's the basis for that he was appealing it to where the united nations i don't know the but the exact body but there was an appeal to sell us is that the sort of thing one normally does in charges for you it says that she authorized an appeal to the u n of all places he said she was told not to leave any stone unturned that's when this was a stone correct ice for some half of the process and i'd like to get to the merits of the appeal if i  may we had this is a torture case is probably about ten years old all along through hundreds of pages of submissions fifty different documents we can't we're tapping told that lefkowitz did not live at that address so we submitted proof showing that the process server verified the address with the post office saying he didn't press that on appeal so well ok so now we have a totally different theory raise for the first time he's had ample opportunity to do it and i think this court's decision it had been asserted in his answer but never raised on the appeal or after the remembered it was in his answer here obviously there was no answer there was a proposed answer which curiously didn't even include a defense of improper service and this court said in that presently she represented at the time when she first made the motion of vacate she did a pro se ok after the objections by the time the objections came that's when she got an attorney who submitted hundreds of pages of objections to the magistrate and then she was represented by attorneys from then on so the judge batts had considered all of her attorney's arguments several times well judge that's certainly considered personal jurisdiction didn't three personal services correct and we never applied waiver quite that precisely where i think that the case is i am a kind of case was specifically on point but this one i think is the closest i could find if we thought the issue was before us what do you have to say about the service issue your honor the service there was clearly three attempts the process server on page thirteen clearly says that he went there on that day that's in question if i may just read from his affidavit he said on the sixth day of july two thousand five six for you and you for a thirteen a thirteen yes the very first paragraph right after his name on the sixth day of july to six fifty five deponent attempted to make personal service of a true copy of the summons and complaint then he says the pony made prior diligent efforts on two other days so when he says he he attempted service can clearly he was there he attempted service and he goes on to say deponent spoke to  where is the third one on the sixth day of july the point in attempted to make personal service and then he says i previously prior i made two additional attempts and then he spoke to david spirit  one seven five is number two what's the date of number three six seventeen the one in the middle no six seven in the  middle that's the first two with earth six seventeen right this the second was july fifth right where is that and the third was july sixth what i just read when he says he attended on july sixth he says i've attempted service by affixing the same to the door now i don't read it that way so you continues that way and therefore on the sixth of july at six fifty five at the out of grass served a copy by affixing the same to the door your honor if you read it it says on july sixteenth tempted to make personal services he said he spoke to david spear a neighbor who stated that the pony lived there but had no knowledge of her and then after he had that conversation with spirit he affixed it to the door right so where was the third effort and personal service july sixteenth he said i attempted to make personal service well he says by fixing it to the door doesn't mean that i don't read it that way well that's what i'm going to how you read it it's what it says i served a copy by affixing the same to the door just those are the words he tempted i don't think it's necessary because he said he did attempt it on the sixth ok because he said he made prior diligent efforts on those other two days so clearly he had made a diligent effort on the third day because it says i made prior diligent efforts well in the prior was given or fax to the for the number that he was given she doesn't deny it she just says oh i may have gotten him i don't recall and if i got them i would have thrown them in the garbage so i think that we established we have a fax confirmation sheet it was eight it was there was no contract for services does though that dispose of the account stated as well now your honor i think you can have an account stated even without an agreement on quantum erowid you don't need to have a written that's a question that we don't have to get to because because of the default but i don't think new york was necessarily applies i mean he was a british lawyer providing services i think in westry or do we know whether any of those a written retention agreement but i know you're right it was never raised before so the british customarily user intention agreement and i'm told not but he didn't have one here and i'm told that that's not the procedure in britain s honor after after all these ten years i think it's time to put an end to the case you shouldn't allow this total shift to procedure after hundreds of pages and then now focus on something that perhaps judge bats could have dealt with at the them judge poole you're absolutely correct it cannot be an account stated if there's no one to lie agreement that was the reason why when you get magazine we have an affidavit from the lawyer but you said that she retained him i believe in person yes that's what he says but she denies it he she she admits meeting with him and and she and she also admits that money went to him great look the money didn't come to him like manna from heaven though of course he came from home i i don't believe that she did it and the money went we would that's enough to establish a contract which are you denying that she said it was hers or that she denied it i did no i don't think she ever said that she knew what arises any want to send any of her money if she did i i don't believe she's addressed that i don't think she either way right now she didn't she didn't deny i don't believe this money was sent at her direction i don't believe she denied that she retained a law firm yes well that's neither here nor there is it because an attorney can send money you know you have to be a lawyer in order to send some send money to somebody or no i request she denied she retained the plaintiff she denied any contractually round and round she did not she retained the plaintiff the plaintiff says he was retained he was paid in part she does not deny that the money that was paid to him was paid at her direction correct direct two seconds left and so i want to say a couple of things first of all there's a world of difference between a defense of statute of limitations and a defense of lack of jurisdiction the latter goes to the power of the court to make an adjudication the case relied upon by my adversary dealing with statute of limitations should have know what like ability to jurisdictional arguments because that goes to the power of the court if there was no jurisdiction ab initio the whole proceeding is void and the think should be vacated