Opinion
June 9, 2001.
Sharinn Lipshie, P.C., Garden City (Eric Weiss of counsel) for plaintiff.
Martin B. Epstein, White Plains (Vincent Castellano of counsel) for defendant.
Decision and Order
Based on the evidence adduced at the traverse hearing and the parties' arguments in this breach of contract action, the court makes the following findings and conclusions.
I. FINDINGS OF FACT
On three successive weekdays, October 1-3, 1996, plaintiff's process server attempted to serve the summons and complaint at defendant's residence, Apartment 3A, 207 East 74th Street, New York County, once before 8:00 a.m. and twice after 6:00 p.m. On each occasion the building doorman, who denied the process server access beyond the inner lobby door, telephoned defendant's apartment but received no response.
Following the third attempt, the process server sought to leave the summons and complaint with the doorman for delivery to defendant. The doorman refused to accept service and denied the process server permission to affix the papers to the inner lobby door. The process server then affixed the papers to the outer lobby door and mailed copies to defendant at her residence.
II. LEGAL STANDARDS
A. A Suitable Person
When unable to serve the summons and complaint personally at defendant's "actual . . . dwelling place," CPLR § 308 (2), despite the exercise of due diligence, Wagner Son v. Schreiber, 210 A.D.2d 143 (1st Dep't 1994); Lara v. 1010 E. Tremont Realty Corp., 205 A.D.2d 468 (1st Dep't 1994); Friedman v. Telesco, 253 A.D.2d 846 (2d Dep't 1998), a process server first must attempt to serve a person of suitable age and discretion at defendant's actual dwelling place.DuPont, Glore Forgen Co. v. Chen, 41 N.Y.2d 794, 797 (1977); McCormack v. Goldstein, 204 A.D.2d 121, 122 (1st Dep't 1994). If unsuccessful, the process server then may affix the summons and complaint to defendant's actual dwelling place. CPLR § 308 (2) and (4). See,e.g., Miske v. Maher, 156 A.D.2d 986 (4th Dep't 1989).
Service on a person of suitable age and discretion is effective only at defendant's actual dwelling. CPLR § 308 (2); Johnson v. Motyl, 202 A.D.2d 477, 478 (2d Dep't 1994); Biological Concepts v. Rudel, 159 A.D.2d 32, 34 (3d Dep't 1990). Outside that proximity to the intended party, the inference that delivery to her is "reasonably likely" fails. Roldan v. Thorpe, 117 A.D.2d 790, 791 (2d Dep't 1986) (quotation omitted). See 50 Ct. St. Assocs. v. Mendelson Mendelson, 151 Misc.2d 87. 91 (Civ.Ct. Kings Co. 1991).
A doorman is presumptively a person of suitable age and discretion.DuPont, Glore Forgen Co. v. Chen, 41 N.Y.2d at 797; Charnin v. Cogan, 250 A.D.2d 513, 517 (1st Dep't 1998). If a doorman is at the main entrance to a multi-unit building, however, he is not normally at a building resident's actual dwelling for purposes of service. Reliance Audio Visual Corp. v. Bronson, 141 Misc.2d 671, 673 (Civ.Ct. N.Y. Co. 1988); Family Fin. Corp. v. Canuelas, 94 Misc.2d 241, 242 (Civ.Ct. N Y Co. 1978). On the other hand, when in this case the doorman barred the process server's access to defendant's residence beyond the inner lobby door, that door became the "outer bounds" of defendant's actual dwelling, and the doorman then was proximate enough to her dwelling to accept service on her behalf. DuPont, Glore Forgen Co. v. Chen, 41 N Y2d at 797. See Braun v. St. Vincent's Hosp. Med. Center, 57 N.Y.2d 909, 910 (1982); Soils Eng'g Servs. v. Donald, 258 A.D.2d 425, 426 (1st Dep't 1999); Kambour v. Farrar, 188 A.D.2d 719, 720 (3d Dep't 1992).
B. Due Dingence
The process server must exercise due diligence to serve either defendant or a person of suitable age and discretion before resorting to "nail and mail" service under CPLR § 308 (4). Pizzolo v. Monaco, 186 A.D.2d 727, 728 (2d Dep't 1992); Miske v. Maher, 156 A.D.2d 986. The question here is whether, upon the refusal by a person of suitable age and discretion to accept service, due diligence mandates an attempt to leave the papers in that person's general vicinity for delivery to the intended recipient, before resort to conspicuous place service is authorized. CPLR § 308 (4); Bossuk v. Steinberg, 58 N.Y.2d 916, 918 (1983); Austrian Lance Stewart v. Rockefeller Center, 163 A.D.2d 125, 128 (1st Dep't 1990).
Conspicuous place service ultimately may follow "the refusal of service by a person of suitable age and discretion," Collier, Cohen, Crystal Bock v. Fisher, 206 A.D.2d 260 (1st Dep't 1994), but the due diligence requirement permits that result only after the process server diligently attempts to leave the papers in that person's general vicinity for delivery to the intended recipient. CPLR § 308 (4);Bossuk v. Steinberg, 58 N.Y.2d at 918; Miske v. Maher, 156 A.D.2d 986. First of all, CPLR § 308 (4) explicitly provides that "where service under paragraphs one and two," delivery to defendant and to a person of suitable age and discretion, cannot be made with due diligence, service may be effected by affixing and mailing the papers.
In addition to the statute's plain language, the principles of decisional authority mandate likewise. No authority expressly states that a diligent attempt to employ the form of service approved by Bossuk is unnecessary to satisfy the CPLR § 308 (2) delivery requirement as a predicate to service under § 308 (4). A superior court of coordinate jurisdiction, on the other hand, imposes just such a requirement, which this court thus is constrained to enforce. E.g., Miske v. Maher, 156 A.D.2d 986. Absent the First Department's express rejection of this predicate to conspicuous place service, see, e.g., Collier, Cohen, Crystal Bock v. Fisher, 206 A.D.2d 260, the due diligence rule affirmatively articulated in Miske binds this court. Mountain View Coach Lines v. Storms, 102 A.D.2d 663, 664 (2d Dep't 1984).
The availability of Bossuk service is conditioned on whether the substitute person to be served is informed that papers are being left in his vicinity for redelivery to defendant. Bossuk v. Steinberg, 58 N.Y.2d at 918;Charnin v. Cogan, 250 A.D.2d at 518; Duffy v. St. Vincent's Hosp., 198 A.D.2d 31 (1st Dep't 1993). If the process server is precluded from informing the substitute person of the process server's intent, plaintiff is entitled to employ conspicuous place service under CPLR § 308 (4). E.g., Wagner Son v. Schreiber, 210 A.D.2d 143; Galuski v. Tutunjian, 133 A.D.2d 480, 481 (3d Dep't 1987); Reliance Audio Visual Corp. v. Bronson, 141 Misc.2d at 674.
III. APPLICATION OF THE STANDARDS
A. The Opportunity for Substituted Service
Here, the process server made no attempt to serve defendant by leaving the papers in the doorman's general vicinity under circumstances informing the doorman that the process server, by depositing the papers there, intended that defendant would be served. Having been refused permission to attach the papers to the inner lobby door, the process server simply attached them to the outer door. However reasonable his belief that defendant was more likely to receive the papers if affixed to the outer door than deposited in the general vicinity of an uncooperative doorman, the process server, with due diligence, could have employed the form of service approved in Bossuk.
B. Affixing the Papers Did Not Amount to Substituted Service.
The remaining issue is whether the affixing of papers to the outer door was proximate enough in time and place to the doorman's prior refusal to accept service so as to consider the af fixation the functional equivalent of leaving the papers in the doorman's immediate vicinity. TheBossuk requirement that the person so served be "made aware" of the process server's intent is sufficiently broad to include both verbal communication and conduct. Spector v. Berman, 119 A.D.2d 565, 566 (2d Dep't 1986); Matter of Turco, N.Y.L.J., July 29, 1992, at 25 (Surr.Ct. Nassau Co.).
Moreover, where the substitute recipient is aware of the process server's objective, the substitute's refusal to act on that information does not defeat service. The process server's communication is all that is necessary to apprise the person to be served of the pendency of the action. Matter of Turecamo, 96 Misc.2d 120, 121 (Surr.Ct. Nassau Co. 1978). Yet, where the person to be informed is not the ultimate intended recipient, but a substituted person of suitable age and discretion, due process requires that the process server communicate sufficient information which, when objectively viewed, is reasonably calculated to assure that the person ultimately to be served will be apprised of the action. Mullane v. Hanover Trust Co., 339 U.S. 306, 314 (1950); Beckman v. Greentree Secs., Inc., 87 N.Y.2d 566, 570 (1996); Raschel v. Rish, 69 N.Y.2d 694, 696 (1986). See Keane v. Kamin, 94 N.Y.2d 263, 265 (1999).
Here, the process server informed the doorman of an intent to deliver documents to defendant. When the doorman refused to allow the process server to proceed beyond the building lobby's inner door, he requested permission to affix the documents to that door. When the doorman also refused to allow this posting, the process server attached the papers to the outer door.
The evidence never established, however, that the circumstances of this posting unequivocally imparted to the doorman a responsibility to transmit the papers to defendant. The posting itself suggests to the contrary; thus, without additional evidence, plaintiff did not meet its burden to prove a communication to the doorman that the purpose of affixing the papers was for him to forward them to the intended recipient. Moreover, where papers are affixed at the exterior door of a building, the posting represents an inherently unreliable form of service, absent evidence demonstrating why such service is not "predestined to failure." Silvestri v. Mandell, N.Y.L.J., Dec. 18, 1991, at 24 (Civ.Ct. Kings Co. 1991).
C. Conclusion
Under all these circumstances, the process server's conduct fell short of due process. He failed to effect substituted service of summons and complaint on the doorman of defendant's building in a manner reasonably calculated to assure that he delivered papers to her and that she was informed of the action and afforded an opportunity to present any defense. Mullane v. Central Hanover Trust Co, 339 U.S. at 314; Keane v. Kamin, 94 N.Y.2d at 265; Beckman v. Greentree Secs., Inc., 87 N.Y.2d at 570; Raschel v. Rish, 69 N.Y.2d at 696.
As service of the summons and complaint did not satisfy CPLR § 308, applied according to minimum due process standards, the court never obtained jurisdiction over defendant. Hence the court must dismiss the action.