CPLR 308

McCord v Larsen, 132 A.D.3d 1115, 18 N.Y.S.3d 458 [3rd Dept., 2015]

Plaintiff alleged that she was injured in a building owned by the defendant, due to a defective porch railing. She sued, and claimed to have served the summons by deliver-and-mail (CPLR 308 [2]). The defendant did not answer, and judgment by default was obtained against him.

He now moved to vacate the default judgment on the grounds that he had not received the summons and complaint in time to defend, and to dismiss the action for lack of jurisdiction. Supreme Court denied both branches of the motion.

The first question must be the jurisdictional one, since if there is no personal jurisdiction the judgment is void. The first step in deliver-and-mail service is delivery to a person of suitable age and discretion at the defendant’s actual place of business, dwelling place, or usual place of abode. The delivery in this case was made to the defendant’s ex-wife, at her residence in the Town of Blooming Grove, Orange County. The defendant had moved out long before the delivery, and claimed that he had moved his business from that address as well. However, the plaintiff showed proof that he advertised his business from that address, and had not changed the address with either the Postal Service or DMV. Delivery was therefore held to have been validly made, and jurisdiction properly upheld.

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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.

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