New York Law Review

Tag: CPLR 308

  • Feinstein v. Bergner, 48 N.Y.2d 234 (1989): Strict Adherence to Service of Process Requirements

    Feinstein v. Bergner, 48 N.Y.2d 234 (1989)

    Service of process on a natural person must strictly comply with the methods prescribed by statute, and courts should not create exceptions to these requirements even in cases of alleged misrepresentation of authority to accept service.

    Summary

    These consolidated medical malpractice cases involve attempts to serve doctors by delivering summonses and complaints to their office employees and then mailing copies to the doctors’ offices, not their residences. The New York Court of Appeals held that such service was invalid because it failed to comply with CPLR 308(1), which requires personal delivery, and CPLR 308(2), which, at the time the actions were commenced, required mailing to the defendant’s residence. The Court declined to create an exception based on prior instances where the process server claimed employees impliedly represented authority to accept service. The Court also refused to apply a later amendment to CPLR 308(2) retroactively, emphasizing the importance of adhering to statutory requirements for service of process.

    Facts

    1. Plaintiffs attempted to commence medical malpractice actions against defendant doctors.
    2. The process server delivered copies of the summonses and complaints to employees at the doctors’ offices, not directly to the doctors.
    3. Copies of the summonses and complaints were mailed to the doctors’ offices but not to their residences.
    4. The process server claimed he had previously served doctors in the same medical group by delivering summonses to their office employees.
    5. The process server alleged that unnamed employees had stated the doctors would not come to the waiting room or allow process servers in their offices, implying authorization for employees to accept service.

    Procedural History

    1. Supreme Court granted the defendants’ motions for summary judgment, dismissing the actions due to lack of personal jurisdiction.
    2. The Appellate Division affirmed, rejecting the plaintiffs’ arguments that service was effective under CPLR 308(1) or 308(2), as amended in 1987.
    3. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether delivery of a summons and complaint to an employee at a defendant’s office constitutes valid personal service under CPLR 308(1) when the defendant is not present and there is no express contemporaneous representation of authority to accept service.
    2. Whether the 1987 amendment to CPLR 308(2), which allowed mailing of the summons to either the defendant’s residence or place of business, should be applied retroactively to validate service in actions commenced before the amendment’s effective date.

    Holding

    1. No, because CPLR 308(1) requires that the summons be delivered “to the person to be served,” which means actual delivery to the defendant.
    2. No, because statutes are generally applied prospectively unless there is express or necessarily implied language allowing retroactive effect, and the legislature explicitly stated the amendment would take effect 30 days after becoming law.

    Court’s Reasoning

    The Court emphasized the importance of strict adherence to the statutory requirements for service of process, citing Espy v. Giorlando, which held that even an express representation of authority by a nurse to accept service on behalf of a doctor was insufficient. The Court reasoned that creating exceptions to CPLR 308(1), even based on a process server’s claim of implied authority, would undermine the regularity, certainty, and reliability of process. The Court stated, “Regularity of process, certainty and reliability for all litigants and for the courts are highly desirable objectives to avoid generating collateral disputes.”

    Regarding the retroactive application of the 1987 amendment to CPLR 308(2), the Court noted the absence of any legislative intent for retroactive application. The Court found that allowing retroactive application would disrupt the established rules of procedure and potentially prejudice defendants who had relied on the existing law when the actions were commenced. The Court concluded, “We therefore agree with the Appellate Division that retroactive application is not available to ‘cure’ defective service in actions ‘commenced’ before the remedial procedural amendment became law.”

  • Russo v. Russo, 60 N.Y.2d 584 (1983): Personal Service Requires Delivery to the Named Defendant

    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.”

  • Bossuk v. Steinberg, 58 N.Y.2d 916 (1983): Valid Service When Summons Left Outside Door After Refusal

    Bossuk v. Steinberg, 58 N.Y.2d 916 (1983)

    Under CPLR 308(2), the delivery requirement for substituted service is satisfied when a process server leaves a summons outside the door of the person to be served after a person of suitable age and discretion refuses to open the door to accept it, provided the process server informs them that this is being done.

    Summary

    The New York Court of Appeals held that the delivery requirement of CPLR 308(2) was satisfied when a process server left a summons outside the defendant’s door after two teenagers inside the house refused to open the door, provided the process server informed them that he was doing so. The court reasoned that the delivery requirement should be interpreted consistently across different subdivisions of CPLR 308. The court also rejected the defendant’s due process argument, holding that the method of service was reasonably calculated to apprise the defendant of the action.

    Facts

    A process server attempted to serve process on the defendant, Steinberg, at his residence. Upon arrival, two teenagers, ages 14 and 15, were inside the house, but refused to open the door to accept the summons. The process server informed the teenagers that he was leaving the summons outside the door and proceeded to do so. The process server also followed up with a mailing of the summons as required by the statute. The defendant challenged the validity of the service.

    Procedural History

    The lower court upheld the validity of the service. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal and certified the question of whether service was proper under CPLR 308(2).

    Issue(s)

    1. Whether the delivery requirement of CPLR 308(2) is satisfied when a process server leaves a summons outside the door of the person to be served after a person of suitable age and discretion refuses to open the door to accept it, provided the process server informs them that this is being done.

    2. Whether service under CPLR 308(2) as interpreted in this case violates due process.

    3. Whether proof of mailing was sufficient when the Sheriff’s employee who mailed the summons was not produced, but proof of the Sheriff’s regular course of business was presented.

    Holding

    1. Yes, because the delivery requirement of CPLR 308(2) can be satisfied by leaving the summons outside the door when a person of suitable age and discretion refuses to accept it, provided the process server informs them of their actions.

    2. No, because a constitutionally proper method of substituted service need not guarantee actual notice; it suffices if the method is reasonably calculated to apprise the interested party of the action.

    3. Yes, because proof of the Sheriff’s regular course of business in mailing the summons is sufficient evidence of mailing.

    Court’s Reasoning

    The Court of Appeals reasoned that the delivery requirements in CPLR 308(1) and CPLR 308(2) should be interpreted consistently. The court cited McDonald v. Ames Supply Co., 22 NY2d 111, 115, where it held that under CPLR 308(1), a summons could be left in the “general vicinity” of a person resisting service. Extending this logic, the court held that leaving the summons outside the door after refusal by someone of suitable age and discretion satisfied the delivery requirement of CPLR 308(2), as long as the person was informed that the summons was being left there.

    Regarding due process, the court stated, “It is hornbook law that a constitutionally proper method of effecting substituted service need not guarantee that in all cases the defendant will in fact receive actual notice (Dobkin v Chapman, 21 NY2d 490, 502). It suffices that the prescribed method is one “reasonably calculated, under all the circumstances, to apprise [the] interested part[y] of the pendency of the action” (Mullane v Central Hanover Trust Co., 339 US 306, 314).”

    The court also found that the proof of mailing was sufficient, relying on Nassau Ins. Co. v. Murray, 46 NY2d 828, 829, which established that proof of the Sheriff’s regular course of business is sufficient to establish mailing.

  • F.I. duPont, Glore Forgan & Co. v. Chen, 41 N.Y.2d 794 (1977): Validity of Service on Apartment Building Doorman

    F.I. duPont, Glore Forgan & Co. v. Chen, 41 N.Y.2d 794 (1977)

    Under CPLR 308(2), in certain circumstances, an apartment building doorman can be considered a person of suitable age and discretion at the actual dwelling place of a tenant, allowing for valid alternative service of process.

    Summary

    This case concerns the validity of serving a summons and complaint on an apartment building doorman as a form of alternative service under New York law. A process server attempted to serve a couple at their apartment but was repeatedly denied access by the doorman. The process server then left the documents with the doorman and mailed copies to the couple. The Court of Appeals held that, under the specific facts found by the referee, service on the doorman could be valid because the doorman prevented the process server from reaching the apartment. The court reasoned the doorman was a person of suitable age and discretion and the lobby, where the papers were left, could be considered the outer bounds of the “actual dwelling place” when access to the apartment is blocked.

    Facts

    A Deputy Sheriff attempted to serve a summons and complaint on William and Rosina Chen at their apartment building. On two occasions, he was allowed into the building but received no response at their apartment. On a third attempt, the doorman acknowledged the Chens had received the deputy’s message but refused to allow him to go to their apartment. The deputy then handed the doorman copies of the summons and complaint for each defendant and also mailed copies to the Chens at their apartment address.

    Procedural History

    The Chens moved to set aside the service. Special Term denied the motion based on a referee’s report. The Appellate Division reversed, granting the motion and dismissing the complaint. F.I. duPont, Glore Forgan & Co. appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether an apartment building doorman can be considered “a person of suitable age and discretion” under CPLR 308(2) for the purpose of alternative service of process.
    2. Whether the lobby of an apartment building can be considered “the actual dwelling place” of a tenant under CPLR 308(2) when the doorman prevents the process server from accessing the tenant’s apartment.

    Holding

    1. Yes, because under the specific facts found, the doorman functioned as a responsible communicator and was entrusted with screening callers and accepting messages.
    2. Yes, because when a process server is prevented from reaching the actual apartment by a building employee, the outer bounds of the dwelling place can extend to the location where the process server’s progress is stopped.

    Court’s Reasoning

    The court reasoned that the 1970 amendment to CPLR 308 significantly altered the requirements for personal service, introducing alternative service as a viable option. The court emphasized that the referee found the doorman had acted as a responsible communicator, informing the Deputy Sheriff that the Chens had received his message. The court stated that the doorman’s duties included screening callers, announcing visitors, and accepting messages and packages. Rejecting the argument that a “family relationship” was required, the Court deferred to the referee’s factual finding. Regarding the “actual dwelling place,” the court stated, “if a process server is not permitted to proceed to the actual apartment by the doorman or some other employee, the outer bounds of the actual dwelling place must be deemed to extend to the location at which the process server’s progress is arrested.” The Court further noted that the inference was available to the referee that the doorman’s refusal to permit the Deputy Sheriff to proceed to apartment 4A was attributable to the defendants. Thus, the Court held that the Appellate Division erred in reversing Special Term, and remitted the case back to the Appellate Division for a review of the facts, as it had erroneously reversed on the law.

  • Fashion Page, Ltd. v. Zurich Ins. Co., 50 N.Y.2d 265 (1980): Sufficiency of Factual Findings After a Jurisdictional Hearing

    Fashion Page, Ltd. v. Zurich Ins. Co., 50 N.Y.2d 265 (1980)

    When a case is treated as presenting a single factual issue regarding the validity of service, a general finding that the plaintiff failed to prove service is sufficient for appellate review.

    Summary

    Fashion Page, Ltd. sued Zurich Insurance Co., and Zurich challenged jurisdiction based on improper service. A hearing was held, and the trial court found that Fashion Page failed to prove service. The Appellate Division affirmed. The Court of Appeals held that because the case was argued and decided on the single factual issue of whether substituted service was properly effected, the trial court’s general finding against Fashion Page was sufficient to permit appellate review, even if more specific findings might have been required had the issue been bifurcated into posting and mailing. The Court also rejected Fashion Page’s reliance on CPLR 317, because that section only applies if valid substituted service has already been established.

    Facts

    Fashion Page, Ltd. (plaintiff) sued Zurich Insurance Co. (defendant). Zurich challenged the court’s jurisdiction, arguing that service of process was improper. The plaintiff’s attorney, acting as process server, claimed to have effected substituted service by posting and mailing the summons and complaint as required by CPLR 308(4). The defendant and his wife testified that no such posting or mailing occurred. The case proceeded to a hearing at Special Term to resolve the factual dispute regarding service.

    Procedural History

    The Special Term found that “the plaintiff has failed to sustain the burden of proving service of said summons and complaint on the defendant.” The Appellate Division affirmed this determination. Fashion Page appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the Special Term’s finding that the plaintiff failed to sustain the burden of proving service was sufficient under CPLR 4213(b) for informed appellate review, given that the issue of service involved both posting and mailing.
    2. Whether CPLR 317 applies to a situation where the very validity of substituted service is being challenged.

    Holding

    1. Yes, because the parties and lower courts treated the case as presenting a single factual issue—whether substituted service was effected as required by CPLR 308(4)—and the determination turned on the credibility of witnesses.
    2. No, because CPLR 317 only applies if substituted service has been properly effected, which was the question at issue in this case.

    Court’s Reasoning

    The Court of Appeals reasoned that the case was presented and decided on a single issue: whether the substituted service occurred as required. The determination hinged on whether the trial court believed the process server’s testimony or the defendant’s denial of service. The court noted, “On this record however it was all or nothing at all. So viewed, the finding at Special Term was adequate and met the requirement of CPLR 4213 (subd [b]).” Had the issue been bifurcated, with arguments specifically addressing the sufficiency of proof for posting and mailing separately, a more detailed finding might have been necessary. However, since the parties treated it as one indivisible issue, the general finding was sufficient. Regarding CPLR 317, the court stated, “The provisions of that section are applicable only if substituted service has been effected—the very question at issue here.” Fashion Page could not rely on CPLR 317 to argue for relief from a default judgment when the underlying issue was whether valid service, a prerequisite for CPLR 317’s application, had ever occurred. The court’s decision emphasizes the importance of how issues are framed and argued at trial, as this can affect the level of detail required in the court’s findings. It also clarifies that CPLR 317 is not a tool to challenge the validity of service itself but rather a mechanism for relief *after* valid service has been established.