Davidman v. Ortiz

• Decision Date: 18 June 1970
• Parties: Samuel H. DAVIDMAN, Plaintiff, v. Michael C. ORTIZ et al., Defendants.
• Court: New York Supreme Court

Page 198

314 N.Y.S.2d 198

63 Misc.2d 984

Samuel H. DAVIDMAN, Plaintiff, v. Michael C. ORTIZ et al., Defendants.

Supreme Court, Special Term, Queens County, Part I.

June 18, 1970.

Hector A. Ortiz, New York City, for defendant.

Salamon, Salamon & Gruber, by Henry S. Salamon, Jackson Heights, for plaintiff.

MEMORANDUM

FRANK D. O'CONNOR, Justice.

This is a motion for an order dismissing the complaint pursuant to CPLR 3211(a)(8) on the ground that the court does not have jurisdiction of the defendant. The moving papers aver that the service of the summons in this action was fatally defective because the summons and complaint were served upon the defendant's attorney while the defendant and his said attorney were attending an examination before trial, in other litigation, in the office of plaintiff's attorney, pursuant to a subpoena. The opposing papers assert that service was, in fact, made upon the defendant personally.

Three issues are thereby presented for consideration. First, was the defendant immune from process while in attendance at a lawyer's office for the purpose of a judicial proceeding, if such office was an extension of the courthouse for such purpose and when such attendance was pursuant to a subpoena? Second, was the requirement of the CPLR 308, that a summons be delivered to the person to be served, satisfied when the service was made upon the attorney of that person in a place where and at a time when such person to be served was present? Third, is it necessary to set this matter down for a hearing to ascertain whether the service was made upon the defendant personally, as contended by the plaintiff?

I

There is a rule, having ancient origins and widespread in its acceptance in this and other jurisdictions, that a suitor in attendance in a court outside the territorial jurisdiction of his residence is immune from service of civil process while attending court and for a reasonable time before and after such attendance, if such attendance is voluntary. The rationale for this hoary rule is 'to encourage voluntary attendance upon courts and to expedite the administration of justice'. (Netograph Mfg. Co. v. Scrugham, 197 N.Y. 377, 380, 90 N.E. 962, 963; also see Thermoid Co. v. Fabel, 4 N.Y.2d 494, 176 N.Y.S.2d 331, 151 N.E.2d 883; Chase National Bank v. Turner, 269 N.Y. 397, 199 N.E. 636; Person v. Grier, 66 N.Y. 124; Yearbook 13 Henry the IV, ib. Viner's Abr. 'Privilege'.) The authorities are in complete accord that the attendance in court must be voluntary and that the immunity is dissipated if the suitor be present by way of compulsion. (Bunce v. Humphrey, 214 N.Y. 21, 108 N.E. 95; 116 E. 57th St., Inc. v. Cachules, unofficially reported, Sup., 106 N.Y.S.2d 586.) In the case at bar, the defendant is (a) not a nonresident of the State but, in fact, resides within the jurisdiction of the Court whose process he now seeks to evade, and (b) his presence in plaintiff's attorney's office was not voluntary, but was in response to a subpoena for an examination before trial. The defendant, therefore, enjoyed no immunity from proper service of legal process (Netograph Mfg. Co. v. Scrugham, Supra; Bunce v. Humphrey, Supra.)

II

The second issue here presented is one of first impression. Was due and proper service effected by deliver of the summons to the defendant's attorney in the defendant's immediate presence?

In his affidavit verified May 14, 1970, the defendant states in part: 'I was not personally served in this action, the papers were handed to my attorney, Mr. Ortiz, when we appeared for an examination before trial * * * and at no time were the papers handed to me or touched the body of my person.' Defendant's attorney's affidavit states in part: 'That on April 13, 1970 I together with Michael C. Ortiz appeared at the offices of * * * attorneys * * * in response to a subpoena to examine the defendant Michael C. Ortiz * * * That upon the conclusion of said examination, Henry Salomon, representing plaintiff handed me a summons and complaint in a new action * * *.' Assuming, therefore, that version of the facts most favorable to the movant, it appears that the summons and complaint was delivered to the defendant's attorney in defendant's presence. Perusal of both the moving and opposing papers herein indicate that the defendant was then fully apprised of the nature eand character of the papers delivered to his attorney.

Plaintiff has submitted a memorandum of law citing three cases in support of his contention that the service was proper, even if the defendant's assertions were true. However, the underlying reasoning in the cases cited is not pertinent to the facts presented in the case at bar. The cases cited by plaintiff concern a particular set of circumstances, i.e., where the defendant is obviously seeking to avoid process and conceals himself, or otherwise so conducts himself as to make difficult, if not impossible, the delivery of the summons to him. Thus, in Levine v. National Transportation Co., Inc., 204 Misc. 202, 125 N.Y.S.2d 679, it appeared that the process server left the summons in the frame of the door of the automobile in which the defendant had locked himself. The service, under those circumstances, was sustained. In Chernick v. Rodriguez, 2 Misc.2d 891, 150 N.Y.S.2d 149, the defendant identified himself to the process server as he stood within his apartment, but he refused to open the door to permit personal delivery of a summons to him. The summons was left on the threshold. Such service was sustained. In Buscher v. Ehrich, 12 A.D.2d 887, 209 N.Y.S.2d 941, the Appellate Division sustained the service where the summons was left with the defendant's husband at her residence. The defendant was then within the house, but refused to come to the door and her husband denied his permission to the process server to enter the premises. The court stated: 'It is contended by the respondent that because the paper was not physically handed to Mrs. Ehrich that there was no service. We do not agree. Service cannot be evaded by such an avoidance and by subsequent reliance upon technicalities.' These cases are not pertinent to the second issue in this case because we are not here concerned with evasion and no such allegation is made.

Under the common law, it was the rule that defendant must be served personally and, if this was not done, the court acquired no jurisdiction. (Hollingsworth v. Barbour (1830), 4 Pet. 466, 472, 7 L.Ed. 922.) Today all service of process is regulated by statute (CPLR, Article 3).

CPLR 308 states, in part, 'Personal service upon a natural person. Personal service upon a natural person shall be made: 1. by delivering the summons within the state to the person to be served; * * *' The courts have ever guarded the legality of its judgments, which might otherwise be jeopardized, by mandating that service of process be in conformity with applicable statutes. (Marcy v. Woodin, 18 A.D.2d 944, 237 N.Y.S.2d 402.) For example: Where a process server dropped the summons on the floor, when defendant was not at home, and it was picked up and handed to the defendant by his mother-in-law, service was held to be defective. (Mecca v. Young, 133 Misc. 540, 233 N.Y.S. 169 (1929).) In like vein, service was nullified where the summons was left with a business associate of the defendant in a reception room of the...