F. I. duPont, Glore Forgan & Co. v. Chen
| Decision Date | 09 June 1977 |
| Citation | 396 N.Y.S.2d 343,364 N.E.2d 1115,41 N.Y.2d 794 |
| Court | New York Court of Appeals Court of Appeals |
| Parties | , 364 N.E.2d 1115 F. I. duPONT, GLORE FORGAN & CO., Appellant v. William S. CHEN et al., Respondents. |
Mortimer Goodman, New York City, for appellant.
Irving S. K. Chin, New York City, for respondents.
We conclude that, in at least some circumstances, an apartment house doorman may be "a person of suitable age and discretion at the actual * * * dwelling place" of a tenant in the apartment house to whom a summons may properly be delivered for the purposes of alternative service under CPLR 308 (subd. 2).
In this case copies of the summons and complaint were delivered to the Sheriff of the City of New York for personal service on each of defendants, husband and wife. On Tuesday, September 24, 1974, a Deputy Sheriff went to the apartment house at 220 West 93rd Street, Manhattan, in which defendants resided. It appears that he was permitted entry and made his way to defendants' apartment, No. 4A. On receiving no response, he left a card inviting defendants to communicate with him. On Thursday, September 26, he returned, again was permitted entry and on receiving no response left his card under the door of defendants' apartment for the second time. When he went back to the apartment house on Monday, September 30, he was greeted by the doorman. He identified himself and inquired about defendants. After informing the Deputy Sheriff that defendants had received his message, the doorman would not permit him to go up to defendants' apartment The deputy then handed the doorman two copies of the summons and complaint, one set for each defendant. On returning to his office the deputy also mailed copies to each defendant at 220 West 93rd Street.
On the basis of a report of a special referee made after a hearing, Special Term denied defendants' motion to set aside the service. On appeal the Appellate Division reversed, on the law, granted the motion and dismissed the complaint. We conclude that it cannot be said as a matter of law that the service was invalid as not in conformity with the requirements of CPLR 308 (subd. 2), and accordingly we reverse.
Inasmuch as Special Term confirmed the referee's report and its findings of fact were not disturbed at the Appellate Division, we must take them as established for the purposes of the present appeal (CPLR 5612, subd. (a); cf. CPLR 5712, subd. (c), par. 1). * We reject defendants' contention that in the factfinding process they were denied due process of law because, as they assert, the referee imputed "total credibility to the Deputy Sheriff's testimony merely because he is a salaried sworn public official". The referee articulated three grounds for crediting the testimony of the Deputy Sheriff rather than that of defendants and their witness, the doorman, only one of which was the deputy's status as a public official. The other two grounds were that the deputy was a disinterested witness (as defendants' witnesses were not) and that his oral testimony at the hearing was consistent with the contents of his certificates of service. We perceive no basis on which the referee's determination with respect to the credibility of the witnesses who appeared before him should be set aside as a matter of law.
Assuming the facts as found by the referee, we turn to consideration of the two issues of substance urged by defendants that the doorman was not "a person of suitable age and discretion" and that delivery of the papers to the doorman in the lobby of the apartment house was not "at the actual * * * dwelling place" of defendants. Again we reject defendants' contentions.
At the outset we note that the provisions of the Civil Practice Law and Rules with respect to personal service were significantly recast with the amendment of section 308, effecti September 1, 1970 (L.1970, ch. 852). In that year the Judicial Conference sponsored the insertion of new subdivision 2. Prior to that time delivery of the summons to a person other than the defendant himself (except to an agent designated for service) was impermissible unless, after diligent efforts, personal delivery could not be made to the defendant. The prior provisions had thus authorized substituted service but not alternative service. The new type of alternative service was carefully defined, had to be accompanied by...
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...must be deemed to extend to the location at which the process server's progress is arrested" ( F.I. duPont, Glore Forgan & Co. v. Chen, 41 N.Y.2d 794, 797, 396 N.Y.S.2d 343, 364 N.E.2d 1115 ; see Siegel, N.Y. Prac § 72 [6th ed 2021] ; Bank of Am., N.A. v. Grufferman, 117 A.D.3d 508, 508, 98......
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...represented that they regularly accepted legal papers on behalf of the named defendants. See F.I. duPont, Glore Forgan & Co. v. Chen, 41 N.Y.2d 794, 396 N.Y.S.2d 343, 364 N.E.2d 1115, 1117 (1977); Board of Managers of he Trianon Condo. v. U39 Realty Corp., 186 A.D.2d 437, 588 N.Y.S.2d 565, ......
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