(631)-271-3737
(718)-751-0226
(516)-307-0262
(347)-508-9316
(631)-223-4502American literary icon and humorist Mark Twain famously penned in the early 1900’s that “Age is an issue of mind over matter. If you don’t mind, it doesn’t matter.” This quote has been borrowed many times in the years that followed by famous athletes such as Satchel Paige and Muhammad Ali. Very cute Mr. Clemons, but sometimes the law does mind and sometimes age does matter. We know, for instance, that in the State of New York you must be 17 years old to operate a motor vehicle, 18 years old to get married without your parents’ permission and 21 years old to purchase alcohol. But how old do you have to be to properly accept service of process under Civil Practice Law and Rules (“CPLR”) Section 308(2)? More specifically- how young is too young to be considered of “suitable age” in New York? The answer might surprise you.
CPLR Section 308 directs the methods that personal jurisdiction can be obtained over an individual via service of process. CPLR 308(2) (informally referred to as “leave-and-mail”), states that “Personal service upon a natural person shall be made…by delivering the summons within the state 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 either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law.”
The purpose of CPLR 308(2) is to discourage “sewer service”- the submission of a false affidavit of service- by giving process servers an alternative to the sometimes difficult task of making personal delivery to the Defendant. The leave-and-mail method requires no prerequisite of due diligence, nor is a Court order required (except in matrimonial actions. See N.Y. Dom. Rel. Law Section 232[a]). At the same time, the statute seeks to provide reasonable assurances that a Defendant will receive actual notice of the action. See Raschel v. Rish, 69 N.Y.2d 694 (Court of Appeals, 1986). Assuming the Plaintiff complies with the statutory requirements, service will be valid even when a Defendant does not actually receive the papers.
Whether a recipient of service of process qualifies as “a person of suitable age and discretion” is a case-specific inquiry. A useful test was stated by the court in City of New York v. Chemical Bank, 122 Misc.2d 104 (1983): “The person to whom delivery is made must objectively be of sufficient maturity, understanding and responsibility under the circumstances so as to be reasonably likely to convey the summons to the defendant.”
Spoiler alert! There appears to be no “bright-line” age below which a child is not a suitable person for service of process, even though “at some point a person should be deemed by the court, as a matter of law, to be too young to have a valid status as deliveree”. Room Additions v. Howard, 124 Misc 2d 19 (1984).
When the age issue has been raised, Courts have had no difficulty concluding that teens can qualify. See, e.g., Wells Fargo Bank, N.A. v. Riley, 23 Misc.3d 1107(A) (2009) (“It is settled that the person of suitable age need not be an adult. A responsible teenager, for example, will do. The criterion should be whether the person can be expected to advise the defendant of the service. (Siegel, New York Practice, Section 72 (2d Ed.)). Similarly, in Bossuk v. Steinberg, 8 N.Y.2d 916 (Court of Appeals, 1983), no one questioned that Defendant’s 14 and 15-year-old children were of suitable age and discretion. So to recap, teenagers in general are likely to qualify as being of “suitable age”, specifically 14- and 15-year-olds.
But what about younger teens? Well a judge in Queens County declared himself skeptical “that a 13-year-old is a person of suitable age and discretion upon whom a summons may be served” pursuant to CPLR 308(2), but also acknowledged (as previously mentioned) that no bright-line age cut-off applies. “The Court stresses that it has a great deal of difficulty finding that a 13-year-old is a person of suitable age and discretion upon whom a summons may be served”. Choi Yim Chi v. Miller, 63 Misc.3d 354 (2019). Accordingly, the Judge ordered a traverse hearing at which the Plaintiff would have the burden of establishing by a preponderance of the evidence that Defendant’s 13-year-old daughter was “objectively … of sufficient maturity, understanding and responsibility under the circumstances so as to be reasonably likely to convey the summons to the defendant.” Id. at 359-60, 92 N.Y.S.3d at 565. So to recap, a 13-year-old is possibly of suitable age, if the Plaintiff can establish that the child is objectively of sufficient maturity, understanding and responsibility under the circumstances.
How about pre-teens? Well the youngest person to have been declared as “suitable” for purposes of service under the CPLR (in the reported decisions found by the Courts) appears to have been 12-year-old William Derrick Jr.. See Durham Productions Inc. V. Sterling Film, 537 F. Supp. 1241 (1982). (No showing was made that the child did not possess the intelligence to deliver the papers to his father and the Court refused to dismiss the claim on that ground.). So to recap, a 12-year-old also might possibly be of suitable age, depending on maturity, understanding, responsibility, etc.
Children under twelve, however, are not likely to pass the suitability test. See, e.g., Wells Fargo Bank Minnesota v. Roman, 10 Misc.3d 1075(A) (2006) (“There are minors and minors. Although the statute does not set a fixed minimum age, the court must strive to find meaning in every word contained in a statute. It must, therefore, presume that the inclusion of the word “age” was not without statutory intention, i.e., that at some point a person should be deemed by the court, as a matter of law, to be too young to have a valid status as deliveree.”). See Room Additions v. Howard, supra. (“Consequently, the court concludes that a ten year old is not of sufficient age and/or discretion to accept service on behalf of someone else..”) So to recap, 11-years-old and below are presumed as a matter of law not to be of suitable age, regardless of understanding or maturity.
In short, although there is still no “bright line” rule, the cutoff age appears to be 11. 11-years-old is too young (per case law) to be considered of “suitable age” in New York for 308(2) service of process purposes; 12-and-13-years old are possibly of suitable age (but may require a hearing to determine maturity, understanding and responsibility), and 14-and-15-years-old (and older) are generally acceptable.
There are situations, however, where municipalities have subverted the lack of a “bright line” rule by creating their own bright line rule, just to be safe. For instance, the Service of Civil Process General Orders provided by the Sheriff’s Office of Tompkins County, New York (effective August, 2020), defines “Suitable Age and Discretion” as “A person, at least sixteen (16) years of age, who understands the nature and purpose of the particular Order that is being served.” So if you find that your local government has taken it upon itself to clear up any ambiguities surrounding what is considered a “suitable age” for service of process, you should go with that definition.
As long as the person served is of “suitable age”, they need not be an authorized representative. In City of New York v. VJHC Development Corp., 125 A.D.3d 425 (1st Dept. 2015), the Plaintiff served process pursuant to CPLR 308(2). Defendants filed a Motion to Dismiss on the ground, inter alia, that Plaintiff failed to show that the person to whom delivery was made was “authorized” by the Defendant to accept process. Of course, no such showing is required. The issue under the statute is simply whether the person to whom delivery was made was of “suitable age and discretion,” an objective test that does not depend on authorization to accept service.
Of course, age is just half of the requirement under CPLR 308(2). Whether one upon whom service of process is made possesses adequate “discretion” under the statute (irrespective of age) is an entirely different analysis.
