(dissenting). This is an action sounding in assault and battery. Plaintiffs seek to recover compensatory and punitive damages for personal injuries allegedly arising out of an incident occurring on August 26, 1978 in Bronx County, New York, and for loss of services. Plaintiffs maintain that service of the summons and complaint upon the defendant was effected pursuant to CPLR 308 (subd 2), which provides, in pertinent part, that personal service upon a natural person shall be made “by delivering the summons * * * 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”. The issue on appeal is the validity of service purportedly made upon defendant at his Potomac, Maryland, residence pursuant to CPLR 308 (subd 2).
The summons and complaint were forwarded to Deputy Sheriff Clagett of Montgomery County, Maryland, for service upon defendant. Clagett, on August 21, 1979, attempted to serve defendant personally, but failed after being informed that defendant was not at home. He attempted service on August 23, 1979 on two occasions, but *366again was informed by someone (who he presumed is defendant’s wife) that defendant was not at home. On the first occasion, on August 23, he called at 8:00 a.m., and after being informed that defendant was not at home left his card, asking the woman to have defendant call him. His second call on said date was at 9:45 p.m. He returned the summons and complaint to plaintiff’s attorney with an affidavit reciting his failed efforts to effect service. Plaintiff’s attorney reforwarded the summons and complaint to Sheriff Clagett with instructions to effect service pursuant to CPLR 308 (subd 2).
According to the sworn affidavit of Clagett, as well as his testimony at a hearing before the special referee on defendant’s motion to dismiss the complaint on the ground that the court did not have jurisdiction of the person of the defendant (CPLR 3211, subd [a], par 8), he returned to defendant’s residence on September 13, 1979 at 7:50 a.m., knocked on the front door, saw a young boy about age 15 and a young girl, age 14, standing behind the door, identified himself to the children after ascertaining that defendant was not at home, explained that he was serving these papers and asked if the children would accept them, and when the children refused to open the door or accept them, left them by the full-length window near the door (stoop), in full view of the children. At all times Clagett was dressed in civilian attire, did not utilize a marked official vehicle, did not display a badge, but did orally identify himself as Deputy Sheriff.
While the Deputy Sheriff’s affidavit executed on September 14, 1979 states that the summons and complaint were mailed, the Sheriff testified that he did not mail them, that he knows nothing about the mailing and assumes that the papers were mailed. He declared that while the affidavit of service states that a copy was mailed on September 13, 1979, he did not mail the copy but only executed service. He testified that there was someone in the Sheriff’s office whose job it was to place summons in the envelope and mail it out, to wit, Ms. Virginia Burdett, and that there is another girl who does it in Ms. Burdett’s place. He further stated that he did not believe his office uses the Pitney Bowes postage meter to affix the postage. *367Subsequently, he declared that “someone from the county picks the mail up, and they affix the postage to it. Our office does not do it.”
The envelope containing the summons and complaint which it is contended was mailed to defendant was purportedly returned, stamped “Out of Town, October 24”.
Although the affidavit of Clagett states that the complaint was mailed upon personal knowledge, he does not know if the envelope was returned to the Sheriff’s office, having no personal knowledge of the mailing events, or how or by whom the legend was stamped on the envelope. The envelope which bears a postmark September 14,1979, and indicates that a postage meter stamped 28 cents postage was affixed thereto, was offered by plaintiffs as a business record made in the ordinary course of business of the Montgomery County Sheriff’s Department and was accepted in evidence by the referee.
Ellen Steinberg, defendant’s daughter, who was identified by Clagett as one of the individuals standing behind the door, testified that she did not recall the events of September 13, 1979 specifically, but that Clagett asked if her “dad” was at home, and she said “no”; that she never saw the summons and complaint, nor did she give them to her father; that the front door cannot be opened from the inside, and that she was instructed not to open the door for strangers, which prompted her refusal to open the door and accept the papers from Clagett.
Dr. Steinberg, the defendant, testified that approximately 60% of his time is spent delivering lectures around the world. He recalled that during the summer and autumn of 1979 he had traveled to Canada, Equador, Boston and “a few other cities in the United States”, but did not recall the exact dates of these trips. He declared that he was never served with, nor did he see the summons and complaint, other than when shown by his attorneys; that first notice of this lawsuit was in a letter dated October 2, 1979 from plaintiffs’ attorney; that his family was instructed to return “important mail” at times that he was away from home and that at some time he contacted his insurance carrier seeking to have them defend this claim.
*368Based upon this evidence and finding the testimony of Sheriff Clagett credible, and that of Dr. Steinberg incredible, the referee found that Sheriff Clagett had diligently attempted service in August, 1979 and had effected service by September 14, 1979 (by delivery to defendant’s son plus mailing) and that defendant was attempting to evade service.
The referee’s report was confirmed, service upheld, and defendant’s motion to dismiss denied.
Service of process (by whatever method utilized), in order to afford the recipient elementary due process under the United States and New York State Constitutions (US Const, 14th Amdt, § 1; NY Const, art I, § 6) must comply with the following pronouncement of the United States Supreme Court: “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections * * * The notice must be of such nature as reasonably to convey the required information * * * and it must afford a reasonable time for those interested to make their appearance * * * But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied.” (Mullane v Central Hanover Trust Co., 339 US 306, 314-315; emphasis supplied.)
In this regard, CPLR 308 (subd 2) affords a method of service via actual delivery to a person of suitable age and discretion, plus the required mailing and filing of proof of service, without the requirement that due diligence be shown in attempting personal service upon defendant (see McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C308:2, pp 206-208).
The “delivery” of the summons to defendant’s children in the manner done in the instant circumstances was not such “actual” delivery as would reasonably be calculated to apprise defendant of the instant lawsuit, where
. (1) delivery was made outside a closed glass door after the Sheriff was apprised that defendant was not at home *369and that the children would not forward the summons and complaint to defendant, and
(2) where the Sheriff could have affixed the summons to the door in the manner proscribed under CPLR 308 (subd 4), having with due diligence not been able to effect service under CPLR 308 (subd 1 or 2), but failed to do so (or personally served the “wife” in August, 1979 on the three occasions when she purportedly received him).
Service was not effected as to afford defendant elementary due process under the foregoing principle, even though credit is given the Sheriff’s testimony as to the manner of delivery of the summons and complaint by leaving it in view of the defendant’s children, but in an open area outside a locked door, vulnerable to loss or disappearance due to the elements or other agency.
The cases which hold that something “less” than actual delivery of the papers to be served is allowable where the defendant is present or nearby and is avoiding service are inapposite.
Study of the transcript of the hearing before the special referee discloses that the referee’s finding that the defendant was evading service is not supported by the evidence. Defendant was a professor who lectures throughout the world, and whose profession requires that he be away from home a good portion of the time, including the pertinent period of August and September, 1979, when service was attempted. Moreover, his instructions to family members not to open the door to strangers clearly was reasonable, and not a calculated avoidance of service. The letter dated October 7, 1979, addressed to plaintiffs’ attorney and signed “The Steinberg Family”, written in response to a letter from the plaintiffs’ attorney informing Dr. Steinberg of this action and cited by the referee as support for the finding that defendant had attempted to evade service, does not contradict the defendant’s testimony that he may have been away in September, 1979, or indicate in any way that the defendant received the summons and complaint. Deputy Sheriff Clagett simply testified that he was informed by third persons that the defendant was not home when he attempted to serve process; no other evidence was *370adduced tending to show that the defendant evaded service.
Where the defendant is not present and there is no evidence of evasion and service is attempted under CPLR 308 (subd 2) by delivery to a person of suitable age and discretion, it is clear that actual delivery must be effected. The delivery must be reasonably calculated so as to assume with a fair degree of foreseeability that defendant will ultimately receive the summons and complaint from such third person(s) and thereby be notified of the pending action in accordance with procedural due process requirements as above enumerated.
In 206 E. 63rd St. Corp. v Price (75 AD2d 598), where the court (p 599) ordered service to be made by “personally serving a person of suitable age and discretion at Defendant’s place of business”, the process server knocked on the frosted glass door and the man inside asked what he had. The server stated he had some legal documents. The man inside opened the door some six inches, saw that the process server had a summons, and immediately closed the door. Thereupon, the server inserted the summons in the mail chute and observed the individual behind the door remove and take the papers; whereupon the required mailing followed. Under such circumstances, the court held the service valid.
Here, by contrast, the intended recipient(s) were not adults, refused (for apparent good reason) to open the door, and specifically notified the Sheriff, who was attempting service, that they would not forward the papers to defendant, whereupon the process server, instead of reattempting service by actual delivery or affixing the summons and complaint to the door (see CPLR 308, subd 4), left the papers in an outside area subject to loss or disappearance.
Under the circumstances herein, the method utilized did not meet the elementary due process requirements of service reasonably calculated to notify defendant of the action.
It is axiomatic that effective mailing alone, without actual delivery in compliance with due process, is ineffective (see Mittelman v Mittelman, 45 Misc 2d 445, '447; *371McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C308:2, pp 206-208; 1 Weinstein-Korn-Miller, NY Civ Prac, par 308.13a). Indeed, not only was there no compliance with the first requirement of the two-pronged mandate, to wit, delivery of the summons 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, but the proof of mailing of the summons is problematical. There was insufficient proof of the ordinary office procedure engaged in by the Sheriff’s office with respect to the mailing of summonses as relates to the time of the purported mailing of the instant summons and complaint to defendant. Deputy Sheriff Clagett testified that he did not know the office practice in September of 1979 respecting pleadings (service of process by mail); that he did not handle the mailings from the office; that this was the responsibility of Ms. Burdett in September, 1979; that “there is another girl that does it in Ms. Burdett’s place;” that he guessed the mailings were made in the ordinary course of business; that he did not “believe” his office uses the Pitney Bowes postage meter to post the postage, and that he believes “someone from the county picks the mail up, and they affix the postage to it” and that he can only “assume” the summons and complaint were mailed to the defendant. Neither Ms. Burdett nor her substitute testified as to the office practice respecting mailing of process.
The admission into evidence of plaintiffs’ Exhibit 7, an envelope of the Sheriff’s office addressed to defendant at his residence bearing a postmark September 14,1979, with the legend “Out of Town, October 24”, does not unequivocally demonstrate service by mail on defendant of the summons and complaint on this record. There is simply no testimony unequivocally showing the contents of such envelope when originally mailed, albeit an inference may be made that the envelope contained the summons and complaint. We need not resolve this dilemma, however, as the service is ineffective because of the failure to serve a person of suitable age and discretion, as aforesaid.
Accordingly, the order of the Supreme Court, Bronx County (Mercorella, J.), entered June 23, 1981, confirm*372ing the report of the special referee and denying defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 8) for lack of in personam jurisdiction, should be reversed, the plaintiffs’ motion to confirm the referee’s report should be denied, and the defendant’s motion to dismiss the complaint should be granted.
Carro and Markswich, JJ., concur with Bloom, J.; Murphy, P. J., dissents in an opinion; Lupiano, J., dissents in a separate opinion in which Murphy, P. J., concurs.
Order, Supreme Court, Bronx County, entered on or about June 23, 1981, affirmed. Respondents shall recover of appellant $75 costs and disbursements of this appeal.