SERVICE OF PROCESS AND PERSONAL JURISDICTION
SUBSTITUTED SERVICE UNDER CPLR 308(2)
IN CIVIL ACTIONS AND UNDER RPAPL 735(1) IN SUMMARY PROCEEDINGS: A COMPARATIVE
ANALYSIS, WITH SOME OBSERVATIONS ON SERVICE UNDER FAMILY COURT ACT SECTION
427(a)
PART 1 of 3
By
David Calender, Esq., Attorney at Law
Founder
and Chief Executive Officer, New York Case -Winning Strategies, LLC
The New York civil practitioner is,
presumably, thoroughly conversant with the hornbook rule that, in order for a
court to exercise personal jurisdiction over a defendant in a civil action (in
summary Landlord-Tenant proceedings, a “respondent”), the defendant must be properly
served with process (in the typical civil case, a Summons; in Family Court
proceedings, a Summons and Petition; in Summary landlord-tenant proceedings, a Notice
of Petition and Petition).
Service of process by substituted
service, specifically the method commonly referred to as “deliver-and-mail”
service, is authorized by subdivision (2) of Section 308 of the Civil Practice
Law and Rules (“CPLR 308(2)”) in a civil case and by Section 735(1) of the Real
Property Actions and Proceedings Law (“RPAPL 735(1)”) in Summary proceedings.
However, these statutory provisions
must be understood and deployed with a clear understanding that, notwithstanding
the appearance at first blush that they contain identical, interchangeable
provisions, there is a subtle but crucial distinction between the two: the method
provided by RPAPL Section 735(1) for deliver-and-mail substituted
service is narrower in the scope of its application and, consequently, presents
a pitfall for the unwary petitioner in a Summary proceeding, whereas service
pursuant to CPLR 308(2) under similar circumstances is routinely sustained by
the courts as valid. For the reasons discussed below, the practitioner in
Landlord-Tenant proceedings is advised to proceed with caution when effecting deliver-and-mail
service upon a tenant pursuant to RPAPL 735(1).
Failure by the litigant in summary landlord-tenant
proceedings to appreciate the practical distinction between these two
provisions has resulted in dismissal of many a Summary proceeding on personal
jurisdictional grounds -- often after much time, effort and expense have been
invested in procuring a Judgment of Possession and/or Money Judgment for rent
owed, thus forcing the anguished petitioner landlord to resort to recommencing
the proceeding ab initio. It
is hoped that the reader will benefit from this article’s comparative analysis
of some notable cases that illustrate the difference in application in the real
world of these discrete categories of deliver-and-mail substituted service.
Where the defendant in a civil action
is an individual (a “natural person”), Section 308 of the CPLR provides that personal
service may be made by delivering the legal process: (i) directly to the
defendant (CPLR 308(1)); (ii) to someone of suitable age and discretion at the
defendant’s “actual place of business, dwelling place or usual place of abode”
and mailing a copy of the summons to the defendant’s last known residence or
actual place of business” (CPLR 308(2)); (iii) to an agent designated under
CPLR 318 (CPLR 308(3)); and (iv) where, notwithstanding diligent, but
unsuccessful, efforts to effect service pursuant to CPLR 308(1) and CPLR
308(2), by affixing the process to the door of the defendant’s “actual place of
business, dwelling place or usual place of abode within the state” And mailing
a copy of the summons to the defendant at his/her actual place of business or
last known residence (CPLR 308(4)).
Scope and Operation of CPLR 308(2) in
Civil Actions Generally (Except Divorce)
The provisions of CPLR 308(2),
implicated in this article, provides for the following method of
deliver-and-mail substituted service:
Section 308. Personal service upon a natural person
Personal service upon a natural person shall be made
by any of the following methods: . . .
2. by
delivering the summons within the state to a person of suitable age and
discretion at the actual place of business, dwelling place or usual place of
abode of the person to be served and by either mailing the summons to the
person to be served at his or her last known residence or by mailing the
summons by first class mail to the person to be served at his or her actual
place of business in an envelope bearing the legend “personal and confidential”
and not indicating on the outside thereof, by return address or otherwise, that
the communication is from an attorney or concerns and action against the person
to be served, such delivery and mailing to be effected within twenty days of
each other; proof of such service Shall be filed with the clerk of the court
designated in the summons within twenty days of either such delivery or
mailing, whichever is effected later; service shall be complete ten days after
such filing; proof of service shall identify such person of suitable age and
discretion and state the date, time and place of service . . .
Thus, pursuant to CPLR 308(2), the
process to be served need only be delivered to “a person of suitable age and
discretion at the actual place of business, dwelling place or usual place of
abode of the person to be served” See, e.g., Bank of New York
v. Espejo, 92 A.D.3d 707, 708 (2nd Dept. 2012) (holding that
“[valid] service pursuant to CPLR 308(2) may be made by delivery of the summons
and complaint to a person of suitable age and discretion who answers the door
at the defendant’s residence, but is not [necessarily] a resident of the
subject property”).
In Espejo, an action to
foreclosure a mortgage, the defendants were served pursuant to CPLR 308(2) with
copies of the summons and complaint at their home by delivery of a copy of the
summons and complaint to one Michael Guzman, referred to in the affidavit of
service as a cotenant, and by mailing two additional copies of the summons and
complaint to the defendants at the same address. The defendants did not respond
to the summons and complaint and a default judgment of foreclosure and sale was
entered against them. Some eight months later, the defendants moved to vacate
the judgment entered upon their default. Insofar as relevant to this article,
in support of the motion challenging the validity of service, one defendant
submitted an affidavit stating that she was not validly served with a copy of
the summons and complaint because Michael Guzman, who received service, did not
reside at the property where service was effected. The Supreme Court, Kings
County, denied her motion to invalidate service on this ground and an appeal
ensued.
On appeal, the Appellate Division,
Second Department, affirmed the denial of the motion challenging the validity
of service, holding that, notwithstanding the defendant’s sworn statement that
Michael Guzman did not reside at the property where the process was served,
[v]alid service pursuant to CPLR 308(2)
may be made by delivery of the summons and complaint to a person of suitable
age and discretion who answers at the door at a defendant’s residence, but is
not a resident of the property.
In support of this conclusion, the
Appellate Division, Second Department, cited a pair of its previous decisions,
one in the context of an action to recover a real estate broker’s commission (U.S.
1 Brookville Real Estate Corp. v. Spallone, 21 A.D.3d 480. 481-482 (2005))
and the other in the context of an action to recover damages for personal
injuries (Chesman v. Lippoth, 271 A.D.2d 567 (2000)).
Thus,
the law in New York is by now well-settled that, under CPLR 308(2), assuming
that the prescribed follow-up mailing and filing with the court is completed, the
requirement of deliver-and-mail substituted service is satisfied merely by
delivering the summons to any individual of suitable age and discretion who
answers the door at the defendant’s residence (described by the statute as
defendant’s “dwelling place or usual place of abode”), even if such person is
not a resident of the premises. For this reason, the trial court and the
Appellate Division rejected the argument by the defendant in Espejo, supra,
that service was invalid because Michael Guzman did not reside at the home
where he answered the door and took delivery of the Summons.
That said, an important procedural
question arises: What if the facts are identical, except that the legal
document handed to the person who answers the door is not a Summons (in
a mortgage foreclosure or breach of contract or personal injury action), but
rather a Notice of Petition in a Summary Proceeding to recover
possession of real property and/or to recover rent arrears? Would the analysis in the three cited
decisions of the Appellate Division, Second Department, apply to invalidate
service of process under the same circumstances in a Summary proceeding?
(Parenthetically, appeals lie from the Landlord-Tenant Court to the Appellate
Term of the Supreme Court, comprising a panel of sitting Justices of the
Supreme Court, not the Appellate Division.)
This is Part 1 of a 3-Part article on
the “deliver-and-mail” method of substituted service in New York Civil
Practice. In Part 2, we will compare and contrast the methods of
deliver-and-mail service provided for in CPLR 308(2) and RPAPL 735(1),
respectively, focusing on a review of the statutory provisions governing
deliver-and-mail service in the context of Summary Landlord-Tenant proceedings
– and the case law relating thereto – which we think the practitioner and
process server alike will find illuminating.
#personaljurisdiction
#serviceofprocess
#substituted service
#cplr308
#rpapl735
#fca427
#foreclosure
#evictions
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