A Person of Suitable Discretion

City of New York v VJHC Dev. Corp.,

___ AD3d ___, ___ NYS ___, 2015 NY Slip Op 00819 [1st Dept., 2015]

CPLR 308 (2) and (4) are on my short list of the worst-written, needlessly muddled sections of the CPLR. One of these days I’ll get around to ranting explaining why, and proposing a rewrite to make them clearer. The issues here, however, are not part of my problem with 308 (2).

Service of process pursuant to CPLR 308(2) requires delivery of the process to “a person of suitable age and discretion.” The term is undefined, deliberately made elastic so as to be interpreted according to the circumstances. Here, the process server delivered a summons and complaint to the defendant’s daughter Vera, at the defendant’s actual place of business, and followed up by mailing the summons and complaint, in a “personal and confidential” envelope.

The defendant tried to avoid service by claiming that the daughter was not “authorized” to accept service on his behalf. The CPLR doesn’t require an “authorized” recipient, merely one of “suitable age and discretion.” Vera was at the time 47 years old, and nothing is mentioned to indicate that she did not have “suitable discretion.” Vera apparently tried to refuse to accept the summons and complaint, but that didn’t matter either. The process server properly left the summons and complaint in her general vicinity.

The defendant’s other objections were similarly ineffective. That the process server didn’t undertake any particular determination of Vera’s suitability didn’t matter. The defendant claimed that the place of service was not his actual place of business. Since he had his name outside the door with the legend “Thomas Sung, attorney at law,” that was a hard sell, and the Appellate Division didn’t buy it. Finally, defendant objected that the process server was not licensed. That didn’t matter, since the lack of a license doesn’t invalidate service. The provisions of the New York City Administrative Code impose the requirement of a license upon persons doing business as process servers, but there is nothing in them purporting to invalidate otherwise proper services of process.  (NYC Admin. Code § 20-404; see Wellington Assoc. v Vandee Enters. Corp., 75 Misc.2d 330, 347 N.Y.S.2d 788 [N.Y.C. Civ.Ct., 1973])

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