COMMITTEE ON CIVIL PRACTICE LAW AND RULES

REPORT NO. 85 June 30, 1997

A. 612 By: M of A Kaufman

Assembly Committee: Codes

Effective Date: 30th day after it

shall have become

a law

AN ACT to amend the civil practice law and rules, in relation to permitting service on a doorman or concierge of a multiple dwelling to satisfy the delivering to a person of suitable age and discretion at the actual dwelling place or usual place of abode of the person to be served requirement of delivery and mail personal service on a natural person under subdivision 2 of section 308 of the civil practice law and rules

REPORT PREPARED BY THE COMMITTEE ON CIVIL PRACTICE LAW AND RULES (#28)

THIS BILL IS DISAPPROVED

This bill would revise the language of subdivision 2 of CPLR 308 and, with respect to "leave and mail" service contemplated therein, effect "personal" service left with a doorman or concierge at the defendant's actual dwelling or usual place of abode where it can be demonstrated that the doorman or concierge upon whom process was served impeded or denied access to the actual dwelling or usual place of abode.

The bill purports to codify a principle well defined by the courts. The statutory "actual dwelling place" or "usual place of abode" of a tenant in a multiple dwelling means the tenant's apartment. Family Finance Corp. v. Canuelas, 94 Misc.2d 241, 404 N.Y.S. 248 (Civ. Ct. N.Y. Co. 1978). However, because many large apartment buildings employ doormen or security guards who prevent entry to unauthorized individuals, obtaining access to the apartment itself is not always possible. In F.I. duPont, Glore, Forgan & Co. v. Chen, 41 NY2d 794 (1977), personal jurisdiction over the tenant in a large apartment building was effected by service of process in the lobby upon the doorman, who denied the process server access to defendant's apartment. Similarly, where the defendant resided in the basement apartment of a private home, service upon the landlord was deemed effective in Roldan v. Thorpe, 117 AD2d 790 (2d Dept. 1986).

Under these cases, the validity of service upon the doorman or landlord was premised on the denial of access for the process server to the actual abode of the defendant, i.e. the tenant's apartment. However, in Reliance Audio Visual Corp. v. Bronson, 141 Misc2d 671 (Civ. Ct. N.Y. Co. 1988), service was not effected where the process server chose to give legal documents to the doorman, but was not denied access to the actual apartment of the defendant. In Dax Auto Leasing Corp. v. Connell, 142 Misc2d 354 (Dist. Ct. Nassau Co. 1989), the manager of a trailer park qualified as a person of "suitable age and discretion", but service upon defendant was not effected because there was no indication that the process server attempted to serve defendant at his trailer, and there was no evidence that the process server was prevented from serving defendant at his trailer. These cases balance the practical circumstances encountered by process servers in making service, against the defendant's right to receive actual notice of the suit.

The bill's objective of deeming substitute service effective when personally made upon a person of suitable age and discretion, who is in fact an agent of the building's management and thus constructively an agent of the tenant/resident, has already been accomplished by the courts. The subtle judicial distinctions in the cases of trailers and apartments accessible to the process server protect the rights of defendants, support the jurisdictional object of actual notice, see, e.g. Bossuk v. Steinberg, 58 NY2d 916 (1983), and accord with the traditional preference for personal service in the literal sense.

Codification in this area, however, is undesirable. It would force the courts to construe an new set of terms, such as what it may mean that "the doorman or concierge upon whom process was served performs the normal and customary duties associated with such employments," or that the doorman "impeded" access. At the same time, under the principle of expressio unius est exclusio alteruis, the legislation could prevent the courts from dealing with other situations not covered by the bill, such as where access is blocked by a security guard, a process server cannot reach an "actual place of business" because of building security, a "doorman" is not clearly a person of suitable age or discretion, and so forth. Since the bill appears to deny necessary flexibility to the courts, the issue seems adequately covered by case law, enactment of the bill is at best unnecessary, and at worst, potentially detrimental, to the goals it seeks to promote.

For the foregoing reasons, this bill is DISAPPROVED.

Report Prepared By: Richard S. Laudor, Esq.

Chair of the Committee: Paul H. Aloe, Esq.