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Colonial National Bank, U.S.A. v. Jacobs

Other Lower Courts

June 9, 2000

Colonial National Bank, U.S.A ., Plaintiff,
v.
Susan Jacobs, Defendant.

COUNSEL

Sharinn & Lipshie, P. C., Garden City (Eric Weiss of counsel), for plaintiff.

Martin B. Epstein, White Plains (Vincent Castellano of counsel), for defendant.

OPINION

Lucy Billings, J.

Based on the evidence adduced at the traverse hearing and

Page 88

the parties' arguments in this breach of contract action, the Court makes the following findings and conclusions.

I. Findings of Fact

On three successive weekdays, October 1-3, 1996, plaintiff's process server attempted to serve the summons and complaint at defendant's residence, apartment 3A, 207 East 74th Street, New York County, once before 8:00 A.M . and twice after 6:00 P.M . On each occasion the building doorman, who denied the process server access beyond the inner lobby door, telephoned defendant's apartment but received no response.

Following the third attempt, the process server sought to leave the summons and complaint with the doorman for delivery to defendant. The doorman refused to accept service and denied the process server permission to affix the papers to the inner lobby door. The process server then affixed the papers to the outer lobby door and mailed copies to defendant at her residence.

II. Legal Standards

A. A Suitable Person

When unable to serve the summons and complaint personally at defendant's " actual ... dwelling place" (CPLR 308 [2]), despite the exercise of due diligence (Wagner & Son v Schreiber, 210 A.D.2d 143 [1st Dept. 1994]; Lara v 1010 E. Tremont Realty Corp., 205 A.D.2d 468 [1st Dept. 1994]; Friedman v Telesco, 253 A.D.2d 846 [2d Dept. 1998]), a process server first must attempt to serve a person of suitable age and discretion at defendant's actual dwelling place. (duPont, Glore Forgan & Co. v Chen, 41 N.Y.2d 794, 797 [1977]; McCormack v Goldstein, 204 A.D.2d 121, 122 [1st Dept. 1994].) If unsuccessful, the process server then may affix the summons and complaint to defendant's actual dwelling place. (CPLR 308 [2], [4]; see, e.g., Miske v Maher, 156 A.D.2d 986 [4th Dept. 1989].)

Service on a person of suitable age and discretion is effective only at defendant's actual dwelling. (CPLR 308 [2]; Johnson v Motyl, 202 A.D.2d 477, 478 [2d Dept. 1994]; Biological Concepts v Rudel,159 A.D.2d 32, 34 [3d Dept. 1990].) Outside that proximity to the intended party, the inference that delivery to her is " reasonably likely" fails. (Roldan v Thorpe,117 A.D.2d 790, 791 [2d Dept. 1986] [quotation ...


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