Bossuk v. Steinberg

• Decision Date: 17 February 1983
• Citation: 447 N.E.2d 56,460 N.Y.S.2d 509,58 N.Y.2d 916
• Parties: , 447 N.E.2d 56 Richard BOSSUK et al., Respondents, v. Alfred STEINBERG, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 509

460 N.Y.S.2d 509

58 N.Y.2d 916, 447 N.E.2d 56

Richard BOSSUK et al., Respondents, v. Alfred STEINBERG, Appellant.

Court of Appeals of New York.

Feb. 17, 1983.

Jules J. Ravo, Yorktown Heights, for appellant.

Martin A. Wein, Middle Village, for respondents.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, 88 A.D.2d 358, 453 N.Y.S.2d 687, with costs, and the question certified answered in the affirmative.

CPLR 308 (subd. 2) provides for delivery to "a person of suitable age and discretion" (other than the person to be served), while subdivision 1 provides for delivery to "the person to be served". However, except for additional requirements not relevant here, the two subdivisions are identical. In particular, each subdivision provides for "delivering the summons". Absent any indication to the contrary, therefore, we may assume that, by retaining the same delivery requirements in both subdivisions while amending CPLR 308 in other respects, the Legislature anticipated that, in this regard, judicial construction of both also would be the same (see McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 75, pp. 162-163).

We have had occasion to hold that, under CPLR 308 (subd. 1), delivery of a summons may be accomplished by leaving it in the "general vicinity" of a person to be served who "resists" service (McDonald v. Ames Supply Co., 22 N.Y.2d 111, 115, 291 N.Y.S.2d 328, 238 N.E.2d 726). Thus, under that provision, if the person to be served interposes a door between himself and the process server, the latter may leave the summons outside the door, provided the person to be served is made aware that he is doing so (Levine v. National Transp. Co., 204 Misc. 202, 203, 125 N.Y.S.2d 679, affd. 282 App.Div. 720, 122 N.Y.S.2d 901; Chernick v. Rodriguez, 2 Misc.2d 891, 892, 150 N.Y.S.2d 149). Concordantly, we hold that the delivery requirement of CPLR 308 (subd. 2) may also be satisfied, as here, by leaving a copy of the summons outside the door of the person to be served upon the refusal of "a person of suitable age and discretion" to open the door to accept it, provided the process server informs the person to whom delivery is being made that this is being done. We add that no question has been raised concerning the fact that the youngsters, one 14 and the other 15, were of "suitable age and discretion".

Moreover, we reject defendant's contention that service which accords with our interpretation of the statute, as it was here, offends due process. It is hornbook law that a constitutionally proper method of effecting substituted service need not guarantee that in all cases the defendant will in fact receive actual notice (Dobkin v. Chapman, 21 N.Y.2d 490, 502, 289 N.Y.S.2d 161, 236 N.E.2d...