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Jaffe & Asher v. Van Brunt - 158 F.R.D. 278 (S.D.N.Y. 1994)

Rule:

In New York, N.Y. C.P.L.R. § 308 controls service on natural persons, and provides that service may be made, inter alia, by delivering the summons to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by mailing the summons to the person's last known residence or his or her actual place of business.

Facts:

J&A, a law firm, represented Van Brunt in a civil suit against the artist Robert Rauchenberg. A fee dispute arose, and J&A commenced the instant action against Van Brunt in or about January 1993. On February 8, 1993, a licensed process server, Joseph Farrell, delivered J&A's summons and complaint to Van Brunt's mother, Jenn Van Brunt, at 4 William Street, Riverside, Connecticut. Van Brunt  was not staying at that address; however, he had requested that J&A bill him at that address. Van Brunt did not answer the summons and complaint. J&A, thereafter, on or about April 28, 1993, served Van Brunt with an order to show cause as to why a default judgment should not be entered. Van Brunt failed to appear at the show cause hearing, and the court entered a default judgment. Van Brunt then filed a motion to vacate the default judgment contending that J&A did not effect service at his "usual place of abode" as contemplated by Fed. R. Civ. P. 4(e), or his "actual place of business" within the meaning of New York Civil Practice Law and Rule § 308.

Issue:

By delivering J&A’s summons and complaint to Van Brunt’s mother, did J&A effect service at Van Brunt’s “usual place of abode” or “actual place of business”?

Answer:

Yes.

Conclusion:

The Court noted that Federal Rule of Civil Procedure 4(e) permitted service upon an individual in accordance with the law of the state in which the district court is located, or by leaving copies of the summons and complaint at the individual's dwelling house or usual place of abode with some person of suitable age or discretion residing therein. The Court determined that Van Brunt’s mother was a person of suitable age and discretion then residing at 4 William Street. In deciding whether or not the address was Van Brunt’s “usual place of abode,” the Court noted that for the purposes of effecting service under Rule 4(e), an individual can have multiple dwelling houses or usual places of abode, provided each contained sufficient indicia of permanence. Here although Van Brunt was not actually staying at 4 William Street when service of the summons and complaint was made, there was sufficient indicia of permanence at that location to make J&A’s service there reasonably calculated to provide Van Brunt with actual notice of the action, i.e., he had a bedroom, private phone line, and fax machine at the house at which process was served, and he received mail and kept clothing in the same. Moreover, Van Brunt’s numerous representations to J&A that the location was his address estopped him from challenging service there.

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