(631)-271-3737
(718)-751-0226
(516)-307-0262
(347)-508-9316
(631)-223-4502The doorman. Sentinel of the apartment complex; keeper of the co-op. The duties and responsibilities of the doorman (who, for our purposes, encompasses no specific gender) can be varied and numerous: announcing visitors; accepting packages; logging complaints; even helping tenants with their groceries. But is the doorman authorized to accept service of process on behalf of their tenants or community members?
First, let’s review the standard rules for services of process- Civil Practice Law and Rules (“CPLR”) 308(2) 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.”
We know by now that CPLR 308(2) requires strict compliance with service requirements. Even if a Defendant becomes aware of a pending action, that would not be sufficient to cure a service defect. See Banker’s Trust Co. of Cal. N.A. v. Tsoukas, 303 A.D.2d 343 (2nd Dept. 2003); Bank of America National Trust & Savings v. Herrick, 233 A.D.2d 35 (2nd Dept. 1994); Raschel v. Rish, 69 N.Y.2d 694 (1986); Feinstein v. Bergner, 48 N.Y.2d 234 (1979). Courts in this jurisdiction have held that it is “axiomatic that the failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void.” McMullen v. Arnone, 79 A.D.2d 496 (2nd Dept. 1981).
But is the doorman considered a “personal of suitable age and discretion” for purposes of CPLR 308(2)? And what is considered a person’s “dwelling place”? Funny you should ask! It just so happens that the Courts have set forth specific criteria as to when service upon a doorman may be acceptable.
The “dwelling place” of a person (for purposes of CPLR service of process) is the place where he or she actually dwells, lives, or inhabits. In Reliance Audio Visual Corp. v. Bronson, 141 Misc.2d 671 (1988), service of process upon the doorman in a building in which Defendant lived on the 16th floor was not considered service at Defendant’s “dwelling place” as required for alternate services of process, even though the doorman was a person of suitable age and discretion (Defendant lived on the 16th floor, not in the lobby). In this case, the process server was permitted to and did go to Defendant’s specific apartment on one of several occasions at which time service was attempted and could have effectuated by taping a copy of the Summons and Complaint on his apartment door pursuant to CPLR 308(4). Since the progress of the process server was not impeded by the doorman, service of process upon a person of suitable age and discretion was required to be made at the actual dwelling place, which was within confines of the Defendant’s apartment and did not extend to stairways, hallways or other common areas in the building. (See also McCormack v. Goldstein, 204 A.D. 2d 121 [1st Dept. 1994]. Delivery of papers to doorman in lobby of apartment house was not delivery to Defendant’s actual dwelling place so as to effect service of process on Defendant, where Plaintiff’s process server was not barred from proceeding to Defendant’s apartment by the doorman, whose permission to enter the building was never requested by the process server even though the doorman readily supplied Defendant’s apartment number; Soils Engineering Services, Inc. v. Donald, 258 A.D. 2d 245 [1st Dept. 1999]. Service of process on doorman did not establish personal jurisdiction over Defendants where Plaintiff did not show that the process server was denied access to the building, thereby necessitating service of process on the doorman; Menkes v. Beth Abraham Health Services, 120 A.D.3d 408 [1st Dept. 2014]. There was no indication that the process server attempted to serve Defendants directly by gaining entry to the apartment. Plaintiff did not submit evidence that process server was denied entry into building before leaving subpoena with the doorman, as is required to show proper leave and mail service under CPLR 308[2].)
The above case law points to a key distinction- in situations where the processer server is denied access to the interior of the building or community (specifically, Defendant’s apartment or unit), then the doorman can be served as a person of suitable age and discretion as no further progress could be attempted. But in situations where a process server is not denied access to the interior of the building or community, or does not request access to the interior, then service upon the doorman would not be appropriate as the process server could still attempt personal service pursuant to CPLR 308(1) or service upon a co-tenant pursuant to CPLR 308(2). “If a process server is not permitted to proceed to the actual apartment by a doorman or some other employee of residential complex, the outer bounds of the actual dwelling place must be deemed to extend to the location at which the process server’s progress is arrested for purposes of determining whether service of process was valid.” Citibank v. Balsamo, 144 A.D. 3d 964 (2nd Dept. 2016). (See also Roldan v. Thorpe, 117 A.D.2d 790 [2nd Dept. 1986]. “If a process server is not permitted to proceed to the actual apartment by the doorman or some other employee, the outer bounds of the actual dwelling place must be deemed to extend to the location at which the process server’s progress is arrested. In this instance that location was the lobby of the apartment house”.)
It is clear that in certain circumstances, a doorman or gate keeper could be considered a “personal of suitable age and discretion” for purposes of CPLR 308(2). Now, I know what you are thinking- what about security guards? Are they treated the same as doormen? The caselaw on security guards is less clear and may require a hearing to determine validity:
In Edwards-Blackburn v. City of New York, 181 A.D.3d 791 (2nd Dept. 2019), the Defendant’s submissions in support of dismissal included specific and detailed averments, as well as the Affidavit of a security guard who worked in Defendant’s apartment building. The security guard averred that the Summons and Complaint were delivered to him at his desk on the date indicated, but that he was not authorized to receive packages or deliveries, that he did not deny the process server access to Defendant’s apartment, and that he did not inform Defendant of the delivery. Under these circumstances, the Court held that it should have conducted a hearing to determine whether the security guard was a person of suitable age and discretion within the meaning of CPLR 308(2), and whether the outer bounds of Defendant’s dwelling place extended to the security guard’s desk in her apartment building. (See also Estate of Gottesman v. Lazansky, 127 A.D.2d [2nd Dept. 1987]. “The foregoing contradictory affidavits raise an issue of fact, to wit, the nature of the authority which the security guard had with respect to accepting service of process for the respondent corporation. Accordingly, a hearing should be held to determine if the respondent corporation was properly served; MBNA America Bank v. Novins, 123 A.D.3d 832 [2nd Dept. 2014]. Hearing was required to determine whether the security guard at Respondent’s townhouse complex was person of suitable age and discretion and if outer bounds of Respondent’s dwelling place extended to security booth.)
Of course, if the doorman or security guard voluntarily accepts service or gives the impression that he or she is authorized to accept service, no hearing is needed. In Board of Managers of Le Tranion Condominium v. 1439 Realty Corp., 186 A.D.2d 437 (1st Dept. 1992), Plaintiff’s process server identified himself to a security guard at a gate outside the private residential community in which Defendant lived. When the guard ascertained that Defendant was not at home, the process server explained the purpose of his visit and asked if the guard would deliver the papers to Defendant. The guard said he would and accepted the papers. “By screening the visitor and representing that he would pass along the legal papers to the Defendant resident, the guard exhibited sufficient maturity and responsibility” for purposes of service pursuant to CPLR 308(2). (See also Arvanitis v. Bankers Trust Co., 286 A.D.2d 273 [1st Dept. 2001]. Service of process by leaving papers with the woman behind the window in the basement of the building where Defendant worked was valid since it was reasonable for the process server to rely upon the claim of authority made by the woman behind the window to whom he had been directed.)
Finally (and it may seem obvious, but) it also matters whether the Defendant asked the doorman or security guard to accept papers on his or her behalf! Process server was told by the building’s doorman that the Defendant said he was unable to see anyone because he was not feeling well, but that the Summons and Complaint could be left with the doorman. The doorman subsequently claimed that he had never accepted service of the pleadings because he was not authorized to accept such papers, and that if such service was attempted, he would direct the process server to the concierge to ring the tenant’s apartment. In addition, there was a sign posted on the bulletin board in the employees’ locker room to never under any circumstances accept anything for the Defendant. However, the doorman did not indicate when the notice was posted in the locker room or whether the notice applied when the Defendant was in his apartment and specifically asked the doorman to accept documents. Under the circumstances, the Court found the process server’s testimony credible and held that delivery of process to the doorman was appropriate. See Braun v. St. Vincent’s Hosp. & Med. Center, 57 N.Y.2d 909, 456 N.Y.S.2d 763, 442 N.E.2d 1274; F.I. duPont, Glore Forgan & Co. v. Chen, 41 N.Y.2d 794, 396 N.Y.S.2d 343, 364 N.E.2d 1115).
So let’s recap: When is service of process upon a doorman, gate keeper or security guard valid- Certainly if the person indicates that he or she has authority and agrees to accept service, or if the Defendant specifically requests that service be accepted, but also if the process server is impeded in his or her progress and is denied entry to the interior of the building or community. Then the outer bounds of Defendant’s “dwelling” are extended to encompass the spot where the process server’s progress is impeded. When is service of process not valid- If the process server could go further in his or her progress but does not, or if the process server does not even inquire as to whether further progress to the Defendant’s apartment or unit is allowed, then the boundaries of Defendant’s dwelling will be viewed narrowly. The lesson for process servers- don’t be lazy!
