Russo v. Russo, 60 N.Y.2d 584 (1983)
Personal service on an individual under CPLR 308(1) requires the summons to be delivered directly to the person to be served; delivery to another person, even if that person promptly delivers it to the intended recipient, is insufficient.
Summary
This case addresses the requirements for valid personal service under New York law. The plaintiff attempted to serve the defendant by handing the summons to the defendant’s son outside the defendant’s home. The son then took the summons inside and gave it to his father. The Court of Appeals held that this did not constitute valid personal service under CPLR 308(1), which requires delivery of the summons “to the person to be served.” The Court rejected arguments that the service was sufficient because the defendant received prompt notice and that the process server acted reasonably. The decision reinforces the strict statutory requirements for personal service, emphasizing direct delivery to the named defendant.
Facts
The plaintiff was injured while a passenger in the defendant’s car on February 27, 1975.
Nearly three years later, on February 15, 1978, the plaintiff attempted to serve the defendant, Salvatore Russo, with a summons.
The process server approached John Russo, Salvatore’s son, who was outside the house.
The process server handed John the summons, possibly asking if he was “Mr. Russo?” or “Sal Russo?”
John Russo took the summons, spoke briefly with the plaintiff, and then went inside and gave the summons to his father, Salvatore Russo.
Procedural History
The defendant moved for summary judgment, arguing that service was inadequate.
Special Term denied the motion, finding that service had been effected, relying on a lower court decision.
The Appellate Division reversed, dismissing the complaint on the grounds that delivery to the wrong person does not confer jurisdiction, even if the summons reaches the intended party shortly thereafter.
The Court of Appeals granted leave to appeal.
Issue(s)
Whether delivery of a summons to the defendant’s son, who then delivers it to the defendant, constitutes valid personal service on the defendant under CPLR 308(1).
Holding
No, because CPLR 308(1) requires that the summons be delivered directly to the person to be served.
Court’s Reasoning
The Court of Appeals emphasized the plain language of CPLR 308(1), which requires service to be made “by delivering the summons within the state to the person to be served.” The court found that delivery to the defendant’s son did not satisfy this requirement, even though the summons ultimately reached the defendant. The Court distinguished prior Appellate Division cases that had upheld service where delivery was initially made to the wrong person, citing its own prior decision in Espy v. Giorlando, 56 N.Y.2d 640 (1982), where it refused to recognize delivery of process to another person as constituting personal delivery to the defendant, stating, “We see no reason to extend the clear and unambiguous meaning of CPLR 308 (subd 1).”
The Court also rejected the argument that service should be validated because the process server acted reasonably, noting that CPLR 308(2) provides an alternative method for service by leaving the summons with a person other than the named defendant after exercising due diligence. The court stated that “any consideration of whether due diligence was or was not used in an effort to make delivery to [defendant] in person is irrelevant.”
Finally, the Court rejected the argument that the defendant was not prejudiced because he received prompt notice of the action, stating that “notice received by means other than those authorized by statute does not bring a defendant within the jurisdiction of the court.” The court emphasized that strict compliance with the statutory requirements for service is necessary to establish jurisdiction over a defendant. As the court had previously stated in Feinstein v. Bergner, 48 N.Y.2d 234, 241, “The fact that defendant may have actually received the summons and complaint is irrelevant in determining the validity of service where there has not been compliance with the statutorily prescribed method of service.”