City of New York v. Chemical Bank

• Decision Date: 12 October 1983
• Citation: 122 Misc.2d 104,470 N.Y.S.2d 280
• Parties: The CITY OF NEW YORK, Petitioner, v. CHEMICAL BANK, Milton Glass, and Shirley Glass, Respondents.
• Court: New York Supreme Court

Page 280

470 N.Y.S.2d 280

122 Misc.2d 104

The CITY OF NEW YORK, Petitioner, v. CHEMICAL BANK, Milton Glass, and Shirley Glass, Respondents.

Supreme Court, Special Term,

New York County, Part I.

Oct. 12, 1983.

Maria T. Jones, Sp. Asst. Corp. Counsel, Allan R. Bloomfield, Deputy Dir., Legal Collection Div., Dept. of Finance, New York City, for petitioner.

John B. Wynne by Thomas W. Cullen, New York City, for Chemical Bank.

No appearance for defendants Milton and Shirley Glass.

MARTIN EVANS, Justice:

This superficially routine enforcement motion, submitted virtually on default, requires that the Court reassess the requirements for "deliver and mail" substituted service under CPLR 308(2). It poses significant questions of constitutional dimension: Is a co-defendant having an apparent conflict of interest a "person of suitable age and discretion"? Does service upon such an individual satisfy generally accepted standards of due process of law?

Plaintiff City of New York here petitions for an order pursuant to CPLR § 5225(b) compelling defendant Chemical Bank to pay the City Collector the sum of $1,980 plus interest. The payment is sought to satisfy an unpaid adjudication of three years' tax liability against defendant Milton Glass. Milton Glass maintains a joint account with his wife, defendant Shirley Glass, at a Chemical Bank branch. Milton Glass did not contest the adjudication of liability; a warrant was accordingly filed with the County Clerk. Shirley was not a party to the tax proceeding and has no liability on account of it. A process-server's affidavit avers that Milton Glass was served pursuant to CPLR 308(1) by personal delivery of the moving papers to him at his home. Another affidavit of the same process server asserts that Shirley Glass was served pursuant to CPLR 308(2) at the same time and place by delivering a copy of the moving papers to "a person of suitable age and discretion to wit: Milton Glass, husband", and by mailing copies the following day to Shirley Glass at her home address, her last known residence. ¹ Neither Milton nor Shirley Glass has answered this petition. Chemical Bank answered only to request that it be discharged upon compliance with the expected turnover order.

At issue is whether Milton Glass, in the context of this case, is a "person of suitable age and discretion." The phrase is not defined by the statute which employs it. See CPLR 308(2). ² Neither is it clearly defined by the cases, although it is used as a term of art. Some cases wisely recommend taking a practical, common sense approach, bearing in mind the unique circumstances of each case. See Karlin v. Avis, 326 F.Supp. 1325. The multiplicity of fact-patterns dealing primarily with the age and mental capacity of the person to whom delivery is made and the nature and closeness of his relationship with the defendant, do not deal with his "discretion" in the context presented here. They thus provide little guidance for the case at bar. The term can only be made meaningful by analyzing the overall statutory scheme for service of process and its underlying purposes.

Service of process is intended to accomplish two related but distinct purposes. Each is basic to due process.

First, it notifies the defendant that the action is pending, fairly apprises him, in general terms, of its object, and tells him when, where and how he should respond. See gen., Valz v. Sheepshead Bay Bungalow Corp., 249 N.Y. 122, 133, 163 N.E. 124.

Second, it is "an act of public power" (In Re Bonesteel's Will, 16 A.D.2d 324, 326, 228 N.Y.S.2d 301) which symbolizes the court's assertion of authority over the litigants. It is the modern substitute for the ancient practice of the capias ad respondendum, where the sheriff, pursuant to a writ prepared at the behest of the plaintiff, would arrest the defendant and hold him to answer the plaintiff's charges. See 3 Blackstone's Commentaries 282. While this aspect of service is frequently minimized as archaic ritualism, it effects an important principle in a free society. If an individual is to be subjected to sovereign power, whether by the government or by a private person, the assertion of that power requires a tangible, overt and verifiable act directed toward the individual being called to account. It is for this reason that actual notice alone, unaccompanied by a valid jurisdiction-acquiring act, is legally insufficient to permit the court to exercise its power over the defendant. See Wuchter v. Pizzutti, 276 U.S. 13, 24, 48 S.Ct. 259, 262, 72 L.Ed. 446; McDonald v. Ames Supply Co., 22 N.Y.2d 111, 291 N.Y.S.2d 328, 238 N.E.2d 726; Saleh Al Dohan v. Kouyoumjian, 114 Misc.2d 170, 451 N.Y.S.2d 367, 369; affirmed 93 A.D.2d 714, 461 N.Y.S.2d 2. Conversely, receipt of actual notice need not be proven. Constitutional due process standards require that, process be served by a legally approved method that viewed objectively, is reasonably calculated to make the defendant aware of the proceedings even if the summons is never actually received. Dobkin v. Chapman, 21 N.Y.2d 490, 289 N.Y.S.2d 161, 236 N.E.2d 451. See also Mullane v. Central Hanover Bank, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865; U.S. Const. Amend. XIV; N.Y. Const. Art. I, § 6.

The New York scheme for service of process on an individual, codified in CPLR 308, is well designed to satisfy both the notice and formality requirements, and thus conforms to constitutional standards. Dobkin v. Chapman, supra. CPLR 308 provides a continuum of methods of service, which, in descending order, have a decreasing probability of according actual notice. Paragraph (1) provides for personal delivery to the individual defendant. Since personal delivery ordinarily affords actual notice, and is thus the most desirable form of service, no further acts are required. CPLR 308(1). The four alternative methods require additional acts which make actual notice more likely, or bear additional conditions which recognize that, while alternative forms of service may often be necessary to subject a defendant to the court's jurisdiction, they are less desirable and more subject to abuse, thus requiring greater regulation. "Deliver and mail" substituted service therefore requires both service to a "person of suitable age and discretion" at the defendant's actual place of business, dwelling, or usual place of abode, as well as mailing to his last known residence and filing of proof of service. CPLR 308(2). Service on a designated agent requires the signing and filing, prior to service, of a written designation, effective for only three years. CPLR 308(3), 318. "Nail and mail" service requires affixation of the summons to the door of the defendant's place of business, dwelling or place of abode, plus mailing and filing, and proof that personal delivery or "deliver and mail" substituted service cannot be made by "due diligence." CPLR 308(4). Finally, court-ordered expedient service requires both prior application and proof that other methods are impracticable. CPLR 308(5).

Good faith is implicit in the spirit of the statutory scheme. If a plaintiff knows, or should know, that service according to the letter of the statute will not afford notice, then, by definition, it is not reasonably calculated to afford notice, and is constitutionally infirm. See, e.g., S.P.S.G. Inc. v. Collado, 113 Misc.2d 167, 448 N.Y.S.2d 385 ("attempts" to serve process, at time or locations where the plaintiff knows the defendant will not be found, held not "reasonable application" under RPAPL 735, or "due diligence" under CPLR 308(4)). Of course, the law recognizes that there are some situations, as where "persons are missing or unknown, [in which] employment of an indirect and probably even futile means of notification is all that the situation permits." Mullane v. Central Hanover Bank, 339 U.S. 306, 317, 70 S.Ct. 652, 658, 94 L.Ed. 865. Indeed, upon a showing that service according to any of the prescribed methods is impracticable, a plaintiff may apply, ex parte, for a judicially fashioned alternative which, under the circumstances, is the most likely to afford notice. CPLR 308(5). Such alternatives, including publication, may involve highly unlikely means of affording notice, but are constitutional if reasonable and necessary under the circumstances and if judicially approved in advance. See, Dobkin, supra. No such showing was attempted here; there is no indication that service cannot otherwise be made in an acceptable manner.

"Deliver and mail" service is clearly the next best alternative to personal delivery. It requires actual physical delivery of the summons, to a responsible party who lives or works with the defendant. Coupled with mailing, it should provide a reasonable likelihood of giving actual notice, since the law correctly presumes that such responsible persons are likely to promptly pass the summons on to its intended recipient. The underlying purpose of giving notice might not be satisfied when the summons so served inadvertently goes astray. That however, is not jurisdictionally fatal, since service was formally made in compliance with statute and in a manner calculated to give notice, thereby satisfying due process considerations. See Nuez v. Diaz, 101 Misc.2d 399, 421 N.Y.S.2d 770.

Where, however, service is not made in compliance with statute, e.g., where summons was mailed to defendant's place of business rather than his last known residence (e.g., Glikman v. Horowitz, 66 A.D.2d 814, 411 N.W.2d 365), the service is fatally defective; even if the defendant does receive notice, the requirement of a formal, jurisdiction-acquiring sovereign act is not met. Where "deliver and mail" substituted service is made pursuant to CPLR 308(2) on a person not of suitable age and discretion, the formality requirement is not met and the purpose of giving notice may not be met.

A pragmatic rule can be synthesized from both these principles and the cases. The person to whom...