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Haak v. Wheatland - 86 A.D.2d 961, 448 N.Y.S.2d 305 (App. Div. 1982)

Rule:

The courts recognize that there is a duty to accept service of process. Thus where a defendant resists service, it suffices to leave the summons in his general vicinity. In adopting that course, however, it remains the responsibility of the process server to bring the questioned process within the purview of the person to be served. The defendant must be made aware that he or she is in fact being served with process.

Facts:

After a hearing, plaintiffs' action against defendant DiMarzo was dismissed on the basis that the court did not have jurisdiction of his person (CPLR 3211subd [a], par 8). On this appeal by plaintiffs, the issue presented is whether service of process was made upon DiMarzo in accordance with the provisions of CPLR 308 (subd 1). Although there were serious conflicts in the hearing testimony, the issue may be resolved solely on the testimony of the process server, James Moore. Moore stated that he arrived at DiMarzo's home shortly after 2:30 a.m. and when he knocked on the door, it was opened by a woman (Mrs. DiMarzo). He asked for Patsy DiMarzo and said he was there to serve a summons. Mrs. DiMarzo said, "Wait a minute", and returned a few minutes later and said, "Take your summons and see him in the office". Moore saw DiMarzo standing in the hallway. Moore returned to his motor vehicle to locate a "thumbtack." After 10 or 15 minutes, he found a rubber band with which he attached the summons to the door of the DiMarzo residence. He returned to his motor vehicle, remained for a short period of time and as he drove from the DiMarzo driveway and entered the highway, the police arrived and halted his motor vehicle. After several inquiries of him by a police officer he was arrested for driving without a license. He claims that DiMarzo came out of the house during the police confrontation and DiMarzo had the summons in his hand. The court noted that the latter assertion was denied by DiMarzo, and that a policeman on the scene did not observe a summons in DiMarzo's possession. It is acknowledged, however, that DiMarzo actually came into possession of the summons at some time between 3 and 6 a.m. Finally, it is conceded that nail and mail service was never effected because of the absence of mailing (CPLR 308subd 4). On these facts the hearing justice found that DiMarzo had not been personally served.

Issue:

Was the defendant validly served by the process server?

Answer:

No.

Conclusion:

On appeal, the court affirmed and held that defendant was not validly served by the process server who affixed the summons to the door after defendant refused to come to the door to receive the summons. The court recognized that the parties conceded that "nail and mail" service was never effected because of the absence of mailing, but ruled that the process server could have complied with the mailing requirement by delivering the summons to defendant's wife who had answered the door. The court ruled that a failed attempt at personal service could not have been validated by the summons shortly coming into the possession of the party to have been served. The court concluded that notice received by means other than those authorized by statute could not serve to establish personal jurisdiction. The process server failed to make defendant aware that he was being served with process and had not left the summons in the general vicinity.

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