Service of Process and the Recalcitrant Security Guard

You want to sue your attorney, and the security guard downstairs won't let the process server up.  The process server goes there several times, and fails to get upstairs.  What is one to do?

Miller v Friedman  2013 NY Slip Op 30282(U)  January 29, 2013  Supreme Court, New York County Docket Number: 400833/12  Judge: Joan A. Madden gives one answer.  You should go to the judge, via motion, early on, and ask for expedient service or some other relief.

"In the affidavit of service, Tracy Harris states that on April 16, 17 and 18, 2012, she attempted to deliver the summons and complaint to defendants at their place of business at 217 Broadway, Suite 401, New York, New York, and on each day she spoke to the security officer at the building, Willie Bernard, who told her “defendants were not available,” and he “would not allow me access upstairs.” Ms. Harris further states that on April 18, 2011 ,“I served the parties listed below by mailing a true copy of the attached papers, enclosed and properly sealed in a prepaid envelope, via signature confirmation, next day, priority mail, which I then deposited in a official depository under the exclusive care and custody of the United States Postal Services within the State of New York addressed” to defendants at the 217 Broadway address.


Based on the affidavit of service, it is undisputed that defendants were served by mail alone, which is not sufficient to effectuate service on the individual defendant under CPLR 308 or the defendant law firm under CPLR 3 IO. The CPLR does not permit service by mail alone. Rather, mailing is just one component of personal service, which is required as a follow-up after the summons and complaint are either delivered to a person of suitable age and discretion at defendants’ actual place of business, or affixed to the door of defendants’ actual place of business. 

In opposing the motion, plaintiff requests that the court “use its discretion” pursuant to CPLR 308(5) to “permit service by mail or some other mode crafted by this Court, because there is no other mode of service available.” Plaintiff also requests that the court use its discretion to find that he “need not comply with the strict provisions of the CPLR,” due to his “physical and financial hardship” and the “impracticality of other modes of service.”

Under CPLR 308(5), the court is authorized to permit expedient service where a plaintiff demonstrates that it is “impracticable” to serve a defendant under existing statutory methods.
With respect to service on a natural person, a plaintiff need only establish that service cannot be
made under CPLR 308(1), (2) and (4).Dobkin v. Chapman, 21 NY2d 490,500 (1968)  Significantly, a showing of impracticability does not require plaintiff to establish actual prior attempts by each and every statutory method of service, or require proof of due diligence. Contimortgage Corp v. Isler, 48 AD3d 732,734 (2nd Dept 2008); Franklin v. Winard, 189 AD2d 717 (1” Dept 1993); Saulo v. Noumi, 119 AD2d 657 (2nd Dept 1986). The court is not persuaded that plaintiff has sufficiently shown that service is impracticable within the meaning of CPLR 308(5). Plaintiff states in his affidavit that defendant law firm is located in a office building “manned by a security guard that does not allow citizens access to the building if they do not have an appointment” and “if there is no response from the company after the security guard attempts to contact the company via telephone.”

Even though plaintiff has not established grounds for expedient service pursuant to CPLR 308(5), the court finds that plaintiff has made an adequate showing of good cause pursuant to CPLR 306-b for an extension of time to serve the summons and complaint on defendants. Henneberry v. Borstein, 91 AD3d 493 (1st Dept 2012). Plaintiff shall have 45 days from the date of this decision and order to properly effect service on defendants, and in the event he is unable to do so, the court will reconsider his request for expedient service."

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