Bossuk v. Steinberg

opinion of the court

Bloom, J.

Defendant, a resident of Potomac, Maryland, and an employee of the National Institute of Health, is charged with an assault and battery upon plaintiffs Richard Bossuk and Arlene Bossuk. Seymour Bossuk, the third plaintiff, seeks to recover for loss of the services of his son, Richard, and of his wife Arlene.

Service of the summons and complaint was sought to be effected upon Dr. Steinberg at his home, a one-family dwelling located at 88-14 Bellsmill Road, Potomac, Maryland. Copies of the documents were forwarded to the Sheriff of Montgomery County, Maryland, and Deputy Sheriff Clagett was assigned to effect the service. On three occasions, once on August 21, 1979 at 9:25 a.m., and twice on August 23, 1979, initially at 8:00 a.m. and then again at 9:45 p.m., he attempted to make personal service on defendant. On each occasion he was told that the defendant was not at home. Clagett is not certain of the persons to whom he spoke on his visit of August 21 and his second visit of August 23. However, he is certain that on his first visit on August 23 he spoke to a woman whom he assumed to be Mrs. Steinberg. At that time, he identified himself, told her of his purpose and left with her a business card indicating his name, address and telephone number and indicating that he was a Deputy Sheriff of Montgomery County, Maryland. He requested that Dr. Steinberg telephone him. Defendant never called.

On August 27, following his third visit to the Steinberg menage, Clagett executed an affidavit indicating his attempts to make service and that he had been unable to do so. The affidavit and the summons and complaint were then, in regular course, transmitted to plaintiffs’ attorney. Thereafter, plaintiffs’ attorney returned copies of the summons and complaint to the Sheriff of Montgomery County with instructions to effect service pursuant to CPLR 308 (subd 2). The letter indicated that such service was to be made by delivering a copy of the summons and complaint to a person of suitable age and discretion at defendant’s actual place of business, dwelling place or usual place of abode and by mailing another copy addressed to defendant at his last known residence. The summons and complaint were again turned over to Sheriff Clagett who, on September 13, 1979 at 7:50 a.m. attended at the Steinberg residence. When he applied for admission two young people responded. According to Clagett the two were a young man, approximately 15 years of age, and a young lady who appeared to be 14 years old. Despite the fact that he identified himself and made known his purpose, they refused to open the door. Clagett asked for Dr. Steinberg and was informed that he was not in. He then requested that the door be opened so that the summons and complaint could be left with them for Dr. Steinberg. Again, they refused to open the door.

To understand what subsequently transpired it is essential that a description of the entranceway be given. Clagett described the door leading to the house as an ordinary metal or wooden door with a glass pane in the upper part thereof. Immediately adjacent to the door and approximately of similar proportions was a glass pane which ran from the ceiling to the floor. The two young people stood behind the glass pane so that they could be observed by Clagett and they, in turn, could observe him.

When the young people refused to open the door Clagett informed them that he was leaving the paper on the stoop in front of the glass pane and proceeded to do so. Throughout the proceedings the two young people who were attentively watching from behind the glass pane were in a position to observe everything done by him. Clagett then left, informed his office of what he had done and someone else in the office mailed a copy of the summons and complaint to Dr. Steinberg at his residence. Subsequently, the mailed copy was returned with the envelope marked “Out of Town, October 24”.

On October 2, 1979, plaintiffs’ attorney sent a letter to defendant notifying him that service had been effected pursuant to law and suggesting that he take such action as he deemed appropriate to protect his rights. In response thereto he received a letter from “The Steinberg Family” requesting that he be patient until Dr. Steinberg returned “from South America in 4 weeks”. Thereafter Dr. Stein-berg turned the matter over to the United Service Automobile Association (US A A) which had issued a policy of liability insurance to him. No claim was made that service of process had not been made as required by law. By letter dated December 4, 1979, addressed to defendant, to the plaintiffs and to the plaintiffs’ counsel, US A A disclaimed coverage under its policy. Subsequently, US A A brought action in the Supreme Court, Queens County, for a judgment declaring that it was neither required to defend this action nor to pay any judgment recovered against defendant therein. During the early part of that action defendant’s time to answer in this action was extended by stipulation. By order dated January 7, 1980 entered in the declaratory judgment action, this action was stayed pending disposition of the declaratory judgment action. That order was resettled on February 28, 1980 to exempt from the stay any motion by defendant to dismiss the complaint in this action based either on the Statute of Limitations or lack of personal jurisdiction over the person of defendant. It is worth noting that the lifting of the stay was conditioned on the specified motions being made returnable “no later than March 10,1980”. This motion to dismiss “on the ground that the Court does not have jurisdiction of the person of the defendant” was made returnable on March 26, 1980.

Be that as it may, Special Term referred the issue for hearing before a special referee. At that hearing Sheriff. Clagett testified as indicated above. Defendant’s daughter admitted that she and her brother were present when Clagett called. She testified that he did not identify himself and that she did not see him lay any papers on the ground. She also testified that some time in the past a sister had been kidnapped and that she had been instructed by her father never to admit strangers. Dr. Steinberg testified that as an employee of the National Health Institute, approximately 60% of his time was spent traveling “around the world, lecturing”. The first notice which he received of the pendency of the suit against him was the October 2 letter from plaintiffs’ attorney. While he had previously been notified that someone had been coming to the house asking for him, he had not been told the reason therefor. He also testified that he instructed the members of his family that if he was to be away for any extended period to return all mail which “looked important”. However, he was quite vague about the periods of time he was out of the country during the late summer and early fall of 1979.

Based on the testimony adduced at the hearing, the special referee reported:

“I give complete credence to Deputy Sheriff Robert K. Clagett’s testimony of his attempted service on the defendant on August 21, 1979, August 23, 1979 at 8 A.M. and August 23, 1979 at 9:45 P.M.

“I find that service was effected on the defendant on September 14, 1979 [sic] when the Sheriff placed the summons and complaint on the door step in the view of the defendant’s son as depicted in exhibit 5A in evidence, and mailed copy to defendant’s residence exhibit 7 in evidence.

“I give no credence to defendant’s vague testimony that he may have been out of town, and he did not receive summons and complaint in 1979. See exhibit 10.in evidence letter dated October 7, 1979 from defendant’s family to plaintiffs’ attorney and I further find the defendant attempted to evade service.”

He recommended that defendant’s motion to dismiss the summons and complaint be denied in all respects. His recommendation was adopted by Special Term and this appeal is from the order denying the motion to dismiss the summons and complaint.

Contrary to the suggestion embodied in the dissenting opinion of our brother Lupiano, this case involves no question of constitutional dimension. The sole, and rather narrow question before us is whether the actions of Clagett constituted compliance with CPLR 308 (subd 2), and 313. CPLR 308 (subd 2) provides that personal service upon a natural person is made by delivery 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 mailing the summons to the person to be served at his last known residence”. CPLR 313 makes the same rule applicable to nonresidents served outside the State who are subject to our jurisdiction under CPLR 301 or 302 provided that service is made by a resident of the State in which service is made or by anyone else duly qualified to serve process in that State or by an “attorney, solicitor, barrister, or equivalent in such jurisdiction”.

We may start with the premise that a defendant may not superimpose upon the requirements of statute his own additional requirements as a prerequisite to obtaining jurisdiction over his person. Thus, the refusal of the defendant or the refusal of members of his household to accept the mail service made upon him may be disregarded. While the defendant may control the acceptance of mail by his household, he may not thereby negate the effectiveness of service otherwise effective under the law. We are then left with the issue of whether the refusal by “a person of suitable age and discretion” to admit Sheriff Clagett warrants setting aside the service. We think not. While we have not been able to find any authority directly in point, there is precedent which points the way. Thus, in duPont, Glore Forgan & Co. v Chen (41 NY2d 794), the Sheriff was denied admission to the defendant’s apartment by the doorman. Thereupon, he left the summons and complaint with the doorman. Despite the absence of any familial relationship between the defendant and the doorman, the Sheriff was held to have satisfied the statutory requisite that the summons be left with a person of suitable age and discretion. In 206 E. 63rd St. Corp. v Price (75 AD2d 598), service was sought to be made at the defendant’s place of business. The door was opened by a person of “suitable age and discretion” who, observing the papers about to be delivered to him, immediately closed it. The papers were then deposited in the letter drop and the person to whom they were to be handed was observed to pick them up. Service was held to be valid. In Chernick v Rodriguez (2 Misc 2d 891) the process server identified himself to defendant who refused to open the door. The process server then left the summons and complaint in the vestibule where they were retrieved by defendant. Again service was held valid.

Here, Clagett made known his purpose and identity. When he was refused admission he left the papers in front of the glass pane. He was observed to do so by defendant’s son. While these facts are not identical with the facts in the cases cited, they are sufficiently close to warrant the special referee’s conclusion that this constituted compliance with the first prong of CPLR 308 (subd 2).

Parenthetically, the son was never brought up to testify. The excuse offered was that he was then (Nov. 6, 1980) engaged in taking final exams. However, the daughter was produced although on the same day she, too, had final examinations.

On the basis of the record before us we are convinced that the claim of defendant was conceived and nurtured in bad faith and, as held by the special referee, was part of a deliberate and calculated effort to evade service. Sheriff Clagett, in his effort to effect service, did all that a reasonable man could be expected to do. We think that statutes dealing with service of process are required to be construed so as to give effect to their purpose (Fashion Page v Zurich Ins. Co., 50 NY2d 265; Tauza v Susquehana Coal Co., 220 NY 259; DeCandia v Hudson Waterways, 89 AD2d 506). So read we hold that the summons and complaint were delivered to “a person of suitable age and discretion” who was a member of defendant’s household.

Accordingly, the order of the Supreme Court, Bronx County (Mercorella, J.), entered on or about June 23, 1981 confirming the report of the special referee denying the motion of defendant to dismiss the complaint upon the ground that the court did not have jurisdiction over his person should be affirmed, with costs.