Dorfman v. Leidner

• Decision Date: 20 November 1990
• Docket Number: No. 2,No. 1,1,2
• Citation: 76 N.Y.2d 956,563 N.Y.S.2d 723,565 N.E.2d 472
• Parties: , 565 N.E.2d 472 Lewis DORFMAN, Individually and as Administrator of the Estate of Regina Dorfman, Deceased, Appellant, v. Sheldon LEIDNER, Respondent. (Action) Dena DAVIDSON, Appellant, v. COMMUNITY GENERAL HOSPITAL, Defendant, and Joseph Lauterstein, Respondent. (Action)
• Court: New York Court of Appeals Court of Appeals

Page 723

563 N.Y.S.2d 723

76 N.Y.2d 956, 565 N.E.2d 472

Lewis DORFMAN, Individually and as Administrator of the Estate of Regina Dorfman, Deceased, Appellant, v. Sheldon LEIDNER, Respondent. (Action No. 1.)

Dena DAVIDSON, Appellant, v. COMMUNITY GENERAL HOSPITAL, Defendant, and Joseph Lauterstein, Respondent. (Action No. 2.)

Court of Appeals of New York.

Nov. 20, 1990.

[76 N.Y.2d 957] [565 N.E.2d 473] Gerald Orseck, Liberty, for appellants.

Myra I. Packman, Mount Kisco, for respondents.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division in each case, 150 A.D.2d 935, 541 N.Y.S.2d 278, 158 A.D.2d 748, 551 N.Y.S.2d 340, should be affirmed, with costs.

Plaintiffs' lawyer in these two medical malpractice cases used the same process server in an attempt to start the actions by delivering copies of the summonses and complaints to employees at the defendant doctors' offices. Subsequently, copies of the summonses and complaints were mailed to the doctors' offices. Supreme Court granted defendants' motions for summary judgment dismissing the actions for lack of personal jurisdiction. The Appellate Division affirmed, rejecting plaintiffs' argument that service was effective under CPLR 308(1) or, alternatively, under CPLR 308(2) as amended in 1987.

Delivery of the summonses and complaints to employees of the defendant doctors did not effect authorized service under CPLR 308(1). Its requirement that a summons be delivered "to the person to be served" has been applied in accordance with its plain and literal language (Espy v. Giorlando, 5 A.D.2d 652, 445 N.Y.S.2d 230, affd. 56 N.Y.2d 640, 642, 450 N.Y.S.2d 786, 436 N.E.2d 193). In Espy, we found CPLR 308(1) unsatisfied where delivery of a summons was made outside the presence of the defendant doctor to a nurse, who told the process server that she was authorized to accept service for the doctor. In the instant cases, as in Espy, delivery was made to employees of the doctors outside the doctors' presence. Unlike Espy, there was no showing of a contemporaneous, express representation of authority. Inasmuch as we held in Espy that service is ineffective even when such a representation is made, the case for refusing "to extend the clear and unambiguous meaning of CPLR 308 (subd 1)" is more compelling here (Espy v. Giorlando, 56 N.Y.2d, supra, at 642, 450 N.Y.S.2d 786, 436 N.E.2d 193).

Plaintiffs, nevertheless, advance an argument sounding in estoppel, based on the process server's statement that he had served doctors in the defendants' medical group on at least 15 prior occasions by delivering summonses to their office employees. He claims that the unnamed employees told him at some unspecified time that the doctors would not come to the waiting room to accept service or allow a process server in their offices or examining rooms, and that "under such circumstances" they were authorized to accept service. We are unpersuaded by this argument, which we decided not to reach in Macchia v. Russo, 67 N.Y.2d 592, 594-595, 505 N.Y.S.2d 591, 496 N.E.2d 680. An exception to CPLR 308(1)'s plain requirement should not be added by the court even when a process server claims to act on an express or implied misrepresentation of specific authority from "the person to be served".

Service of process is carefully prescribed by the Legislature, which affords litigants ample methods for serving natural persons. Regularity of process, certainty and reliability for all litigants and for the courts are highly desirable objectives to avoid generating collateral disputes (see, McDonald v. Ames Supply Co., 22 N.Y.2d 111, 116, 291 N.Y.S.2d 328, 238 N.E.2d 726). These objectives are served by adherence to the statute and disserved by judicially engrafted exceptions to CPLR 308(1) (CPLR 308[2]; see also, Macchia v. Russo, supra, at 594, 505 N.Y.S.2d 591, 496 N.E.2d 680; duPont, Glore Forgan & Co. v. Chen, 41 N.Y.2d 794, 797, 396 N.Y.S.2d 343, 364 N.E.2d 1115).

Plaintiffs alternatively urge that the 1987 amendment to CPLR 308(2) should be retroactively applied to validate their purported service of process. In 1986, when plaintiffs attempted to commence these actions, CPLR 308...