Cooney v. East Nassau Medical Group

OPINION OF THE COURT

Murphy, P. J.

After a traverse hearing, the Special Referee concluded that plaintiffs had succeeded in obtaining personal jurisdiction over defendant partnership East Nassau Medical Group, but had failed to obtain jurisdiction over defendant Dr. Alfred E. Cave. These findings were confirmed by the court which accordingly severed and dismissed the action as against Cave but denied defendant East Nassau Medical Group’s motion to dismiss the action as against it.

We conclude that the Referee’s report was in error both as to its finding that jurisdiction had been obtained over the partnership and as to its finding that it had not been obtained over defendant Cave, and that the court’s order incorporating these erroneous findings should be modified accordingly.

It is undisputed that the process by which plaintiffs would have bound East Nassau Medical Group, in the present action, was left by the process server with Mrs. Hazel Buehlman, the partnership’s executive secretary. It is further undisputed that Mrs. Buehlman, not being an East Nassau partner, was not authorized pursuant to CPLR 310 to receive service for the partnership. Nor is there any question that Mrs. Buehlman was not authorized to receive service for the partnership pursuant to any other statutory provision. As it is well established that ”[s]ervice is only effective * * * when it is made pursuant to the appropriate method authorized by the CPLR” (Markoff v South Nassau Community Hosp., 61 NY2d 283, 288; see also, Feinstein v Bergner, 48 NY2d 234, 241; McDonald v Ames Supply Co., 22 NY2d 111, 115-116), it follows that the service here at issue was invalid and, therefore, ineffective to bring the partnership within the court’s *394jurisdiction. Two theories are, however, offered to save the service intended for the partnership.

The first of these relies heavily upon Fashion Page v Zurich Ins. Co. (50 NY2d 265). There, the Court of Appeals sustained service on a corporation upon the ground that the process server had permissibly relied on corporate employees to identify the proper person to accept process on the corporation’s behalf and had served that person "in a manner which, objectively viewed, [was] calculated to give the corporation fair notice” (supra, at 272). Plaintiffs would extend the reasoning of Fashion Page to embrace partnerships. Thus, it is urged that a process server may rely on partnership employees to identify the proper person to be served.

A close reading of Fashion Page (supra), however, discloses that the approach taken there was meant to address a special problem confronting process servers attempting to serve corporations. A corporation must, of course, be served through an agent. And, although the statute identifies specifically certain corporate personnel who may act as agents for the receipt of corporate process, it also provides generally that process may be served on "any * * * agent authorized by appointment or by law to receive service”. (CPLR 311 [1].) As the Court of Appeals has noted, appointment of an agent pursuant to CPLR 311 (1) need not be attended by formalities such as those set forth in CPLR 318. (Fashion Page v Zurich Ins. Co., supra, at 272.) The statute then expressly recognizes that a corporation may informally designate virtually anyone to receive process in its behalf. Thus drawn, the statute does not inform the process server of precisely who, and, more importantly who may not, accept service. The process server on entering corporate offices may, therefore, find it necessary to inquire as to the identity of the proper recipient of corporate process and will generally have little reason to discount representations of authority made to him by corporate employees (supra, at 273). It was then in recognition of the circumstance that "the process server cannot be expected to know the corporation’s internal practices” (supra, at 272) pursuant to which an agent for the receipt of process may be appointed that the Fashion Page court went on to hold that "[r]eliance may be based on the corporate employees to identify the proper person to accept service” (supra, at 272).

Key to a proper understanding of Fashion Page (supra) is the fact that the statute expressly renders internal corporate practices respecting the receipt of service, which practices *395may be initially unknown to the process server, relevant to the process server’s discharge of his or her duties. The same is not true of CPLR 310 governing service upon partnerships. Unlike corporations, partnerships need not be served through agents, and, leaving aside CPLR 318 which is not here relevant, the applicable statute makes no allowance for any but personal service: CPLR 310 provides in its entirety, "Personal service upon persons conducting a business as a partnership may be made by personally serving the summons within the state upon any one of them.” Thus, as the process server sets about serving a partnership he knows exactly who may be served, i.e., a partner, and has no need to rely on partnership personnel to identify others authorized to act in the partners’ stead. Indeed, there is ordinarily no reason for a process server to suppose that anyone but a partner will be so authorized. As noted, the statute provides no basis for such a supposition. Nor does it seem likely that partners would generally wish to waive personal service and so facilitate the commencement of proceedings against themselves. The factors justifying a process server’s reliance upon representations of authority made to him in the course of serving a corporation simply do not obtain where the object of service is a partnership and for this reason the essential holding of Fashion Page (supra, at 272), namely, that "[r]eliance may be based on the corporate employees to identify the proper person to accept service” may not be transposed so as to apply where service upon a partnership is at issue.

There is, in any case, no indication that the plaintiffs’ process server was in any way misled. Although he was directed by a receptionist to Mrs. Buehlman, the record gives no evidence of any inquiry by him respecting Mrs. Buehlman’s authority. Nor is there any indication that Mrs. Buehlman made any representation of authority to him. Indeed, the record before the court does not disclose that East Nassau attempted in any way to interfere with the proper delivery of process. To the contrary, the undisputed testimony of Mrs. Buehlman, which was the sole testimony offered respecting the service directed at the partnership, established that when, in the normal course of business, a process server requested that a partner be made available to accept service, Mrs. Buehlman would, "see what partner was available and call him to come to the administration office.” It would have been an easy matter for the process server to serve a partner in accordance with CPLR 310. That he did not do so is appar*396ently due to his failure to ask that one be made available rather than to any affirmative attempt by the partnership to evade service.

Although conceding that the rationale of Fashion Page (50 NY2d 265) is not here applicable, the dissent would uphold the service intended for East Nassau upon the singular ground that Mrs. Buehlman was in fact authorized by the partnership to accept service in its behalf. It is, at best, questionable whether Mrs. Buehlman was so authorized. Certainly, she possessed no express authority, and contrary to the impression which might be gathered from the dissent, the record provides no indication of the frequency with which she ended up the recipient of process intended for the partnership. Nor is there indication that when she did assume to accept process she did so with the knowledge or approval of the East Nassau partners.

Be this as it may, let us assume for argument’s sake that Mrs. Buehlman was authorized by the partnership to accept process. The question is what relevance this supposed fact should have to our assessment of the validity of the service at issue.

Due process requires that service be effectuated in a manner reasonably calculated to afford notice of a proceeding to interested parties. (Mullane v Central Hanover Trust Co., 339 US 306.) Ordinarily, however, it is not necessary to address directly whether service has been accomplished in such a way as would satisfy constitutional standards. This is because there are statutes specifically regulating the manner of service and if they have been complied with, the presumption must be that the service meets the requirements of due process. In exceptional circumstances service will be sustained even though it does not comport with the applicable statute (see, e.g., Fashion Page v Zurich Ins. Co., supra, at 274; McDonald v Ames Supply Co., supra, at 115), but service can never be sustained when it does not satisfy due process standards. The fundamental consideration underlying every case in which the validity of service is at issue is whether the service was under all the circumstances reasonably calculated to afford the prospective defendant the required notice.

Clearly, the present case is not one in which a court ought to excuse the plaintiff from complying with the applicable statute. As noted, there has been no showing of any affirmative attempt by the partnership to evade service, nor is this a *397case where the process server diligently endeavored to fulfill the statutory mandate but, through no fault of his own, served the wrong person. So far as can be told from the record made at the traverse hearing, the process server, although undoubtedly aware of the statute’s requirement of personal service, did not even ask that a partner be made available to accept service.

But even if it were possible somehow to excuse the plaintiff and his agent, the process server, from the statutory mandate, the service at issue would still fail for it cannot be said that the service was reasonably calculated to apprise the intended defendant of the action. If Mrs. Buehlman was East Nassau’s agent for the receipt of process, there is nothing in the record to show that the process server knew that to be the case. When he deposited the summons with her without, so far as can be told, making any inquiry into her authority, the process server did not know what Mrs. Buehlman would do with the summons. That, as subsequently came to light at the traverse hearing, Mrs. Buehlman did know to send the summons to East Nassau’s malpractice carrier, could have had no bearing upon the process server’s decision to leave the summons with her.

There may, of course, be cases in which an agency relation between the party to be bound in an action and the person served will be of consequence in determining whether the service was accomplished in a manner reasonably calculated to afford notice. If, for example, the intended defendant has openly waived personal service and has openly agreed to be served through someone other than those designated in the applicable statute, the process server is clearly entitled to rely on such a waiver; service upon one whom the process server knows at the time of service to be the intended defendant’s agent for the receipt of process is clearly calculated to give notice. But where, as in the present case, the process server has no certain knowledge of, or even reasonable grounds to infer the existence of an agency relation assuring that the summons will come into the hands of the proper party, it cannot be said that the service made upon someone other than one statutorily authorized to receive it was, in fact, reasonably calculated to give notice.

In the final analysis, the theory upon which the dissent rests is little if at all different from that so often advanced to save defective service, namely, that the error of the process server should be excused and the service sustained because *398the process shortly came into the possession of the proper party. The argument has been routinely rejected (see, McDonald v Ames Supply Co., supra, at 115, and cases cited therein; see also, Feinstein v Bergner, supra, at 241; Markoff v South Nassau Community Hosp., supra, at 288), and there is no reason why the present case should be treated as an exception. That there may exist some arrangement unknown to the process server by which process eventually finds its way to the party designated by statute to receive it is, quite simply, irrelevant. The fact that process is eventually received by the statutorily designated party, whether by chance or subsequently discovered arrangement, does not retrospectively excuse the process server’s initial failure diligently to attempt compliance with the statute, and, to effect service in a manner reasonably calculated to give notice. Contrary to the suggestion of the dissent, the rules of agency cannot be employed to validate service invalid when made. A principal purpose of the statutes regulating the manner of service is to assure that certain high standards of care are maintained by process servers. It is completely inconsistent with this very sound objective to permit agency rules effectively to displace the statute, and, for us thereby to countenance careless service.

Turning now to the service directed at defendant Cave in his individual capacity, the undisputed testimony at the traverse hearing established that plaintiffs’ counsel called Dr. Cave’s office on several occasions to find out when he would be available to accept service. When these inquiries were uniformly deflected, plaintiffs’ process server made three attempts to serve Cave at his home. On the second such attempt, the process server was told by a middle-aged woman at defendant’s residence that Cave would be at home on the afternoon of the following day, which, we note, was a holiday. The process server returned at that time but found no one home. Thereupon, he affixed the summons to the door of defendant’s home and subsequently mailed a copy to defendant.

The Referee found that the process server had not shown due diligence in attempting to make personal service upon Cave, and that his resort to service pursuant to CPLR 308 (4) was, therefore, ineffective. We disagree.

Where, as here, reasonable efforts to arrange for personal service on a defendant at his place of work are unavailing and the process server thereafter repeatedly attempts to serve the defendant at his home—on one occasion returning there at a time he had been specifically advised that the defendant *399would be in—we think there has been a sufficient showing of due diligence to permit “nail and mail” service pursuant to CPLR 308 (4).

Accordingly, the order of the Supreme Court, New York County (Arthur E. Blyn, J.), entered June 24, 1986 which, inter alia, confirmed the report of Special Referee Frank B. Lewis dated November 12, 1985 in its entirety, and in view of the Referee’s findings that personal jurisdiction had been obtained over defendant East Nassau Medical Group, but had not been obtained over defendant Alfred E. Cave, denied defendant East Nassau’s motion to dismiss the action as to it, but granted defendant Cave’s motion to sever and dismiss the action as to him, modified, on the law and the facts, to the extent of rejecting the Referee’s above-stated findings, granting defendant East Nassau’s motion to dismiss the action against it based on its affirmative defense of lack of personal jurisdiction, denying the motion of defendant Cave to dismiss the action as against Cave for lack of personal jurisdiction, and reinstating the action as to him, and except as so modified, should be affirmed, without costs.