Pursuant to order dated January 10, 2011, the Court conducted a "traverse" hearing to ascertain whether personal jurisdiction was obtained over the above captioned defendant who defaulted in appearing and answering and against whom a $7,092.71 judgment was entered.

The undisputed relevant facts adduced during the hearing are that the plaintiff's process server delivered this action's summons and complaint to a person of suitable age and discretion on September 30, 2010, i.e. upon an approximate 42 year old male, after he stepped out of a truck parked upon the street in front of the real property premises located at 38 River Street, Lindenhurst, New York 11757. This gentleman responded he was not the defendant, gave his first name as Jason and refused to give a last name. While not conceded, the defendant did not present evidence to dispute the process server's testimony that this man, after service, walked from the road and entered the defendant's residence which also served as the defendant's place of business. The process server thereafter mailed another copy of the summons and complaint to the defendant at the address in the manner proscribed by law. It is undisputed that the served individual was not the defendant. The [*2]defendant testified he never received either the hand delivered or mailed summons and complaint.

Does in hand service, with appropriate follow up mail service, of a summons and complaint to a suitable age and discretion non-defendant, upon a public roadway, in front of the defendant's residence/place of business, meet the substitute service requirements established in New York CPLR §308 (2)?

Sec. 308 (2) of the New York CPLR (hereafter "§308 (2)" provides for substitute service of a complaint and initiation of a civil action as follows:

"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 known residence or by 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, which ever is effected later." Emphasis added.

New York law does not require actual service of a summons and complaint upon a defendant to invoke the jurisdiction of its Civil Courts to enter a money judgment. Bossuk v. Steinberg, 58 NY2d 916 (NY 1983). Sec.308 (2) allows for an alternative substitute manner of service which does not guarantee, actual notice of suit upon the defendant but which seeks to provide "reasonable assurance of notice of suit". See Raschel v. Rish,69 NY2d 694 (NY 1986). Prior to 1970, a predicate to utilization of alternative substitute service was a bona fide attempt at actual service. Feinstein v. Bergner, 48 NY2d 234 (NY 1979).

The crux of the issue presented is what constitutes service "at" a defendant's residence, business location or usual place of abode. More specifically, does in hand service on a person of suitable age in the street in front of the defendant's residence/place of business satisfy the statute's requirements. Generally, when invoking the jurisdiction of New York's Courts, service of process must be made in "strict compliance" with the statutory method. Macchia v. Russo, 67 NY2d 592 (NY 1986). Interestingly, the Macchia Court faced a similar fact pattern to the case in bar, wherein it ruled that delivery of the summons to the defendant's son in the driveway, who thereafter went into the house and delivered same to his father, did not meet Sec. 308 (1)'s personal delivery requirements. [*3]

At first blush it would appear that handing a summons in a public street to anunidentified individual who acknowledged only that he was not the defendant and that he works with him, would not meet the strictly construed concept of service "at" the defendant's residence or place of business. Most reported case law envisions the minimum requirement of an attempt to serve at the defendant's door prior to implementation of substitute service. This seems consistent with the Feinstein Court's sentiment that "the legislature retained. . . the requirement that the summons be delivered or affixed to the defendant's actual abode".

However, the Second Department has held that substitute service effected on the sidewalk in front of a residence passes Sec.308 (2) muster. Houss v. Dachowitz, 255 AD2d 491 (NY AD2d Dept. 1998). Additionally, it has been determined that a suitable age person need not be a family member or an employee if at a business. See, Public Administrator of the County of New York v. Markowitz, 163 AD2d 100 (N.Y.A.D. 1st Det. 1990). As it is undisputed that this is both the defendant's residence and place of business, service under these circumstances was proper under either scenario.

In the face of such precedent, this Court is constrained to find that the defendant's mere denial of receipt of the summons is insufficient to overcome the presumption of delivery whichattaches to a properly mailed summons. See, Colon v. Beekman Downtown Hospital, 111 AD2d 841 (N.Y.A.D. 2nd Dept. 1985). Accordingly, the Court determines that it did have the jurisdiction to enter the subject judgment, and that it may not be vacated upon the facts presented.

The Court notes that the subject judgment is less than a year old. The defendant's remedy lies in the provisions of New York CPLR §317, which grants this Court the discretion to vacate a default judgment premised upon a factual finding of no actual notice of suit and of a potentially meritorious defense. The Court finds that the defendant did not receive either the substituted delivery or mail copy of the summons and had no notice of commencement of suit prior to his default being taken. However, relief can not be granted under §317 as no affidavit or testimony of a meritorious defense have been proferred.

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J.D.C.

Dated: March 31, 2011