SUBSTITUTED SERVICE UNDER CPLR 308(2) IN CIVIL ACTIONS AND UNDER RPAPL 735(1) IN SUMMARY PROCEEDINGS: A COMPARATIVE ANALYSIS, WITH SOME OBSERVATIONS ON SERVICE UNDER FAMILY COURT ACT SECTION 427(a)
PART 3 of 3
By David Calender, Esq., Attorney
at Law
Founder and Chief Executive
Officer, New York Case -Winning Strategies, LLC
In Part 2 of this three-part
article, we reviewed RPAPL Section 735(1) and the somewhat narrow scope of its
application when personal jurisdiction is challenged by a tenant in Summary
Landlord-Tenant proceedings. In this, the third and final Part of the article,
we examine the provisions of Section 427(a) of the Family Court Act, focusing
on whether -- and to what extent -- the substituted service provisions thereof
differ from those of CPLR 308(2) and RPAPL 735(1) and the resultant
ramifications for the New York practitioner.
Deliver-and-Mail Substituted Service
in Family Court Proceedings (FCA Section 427)
Is the deliver-and-mail method of substituted service available in Family
Court proceedings? If so, on what side of the procedural divide does such
service fall, i.e., must the suitable age person who answers the door
actually “reside” or be “employed” at the premises in order for service to be
valid, as is the case in Summary Landlord-Tenant proceedings (RPAPL 735(1)),
or, is service proper by a simple showing that the suitable age person who
accepted the papers was merely “at” the residence/actual place of business of the
person to be served, as permitted by CPLR 308(2)?
The answer is to be found In Section 427(1) of the New York Family Court
Act. By way of background, the Family Court is a creature of the New York
Family Court Act (“FCA”), which vests in that court exclusive original
subject-matter jurisdiction over a myriad of domestic relations proceedings. It
should be noted, however, that although most subject-matter jurisdictional
grants are specified in the FCA, the subject areas enumerated in that statute
are not exhaustive; others are set forth in the Social Services Law, the
Domestic Relations Law, the State Constitution, and the Unconsolidated Laws.
Section 115 of the FCA describes the cases in which the Family Court
exercises exclusive subject-matter jurisdiction. They include, but are not
limited to, the following: support (child and spousal); custody and adoption of
children; paternity determinations and support of out-of-wedlock children;
abuse and neglect determinations; family offense cases (concurrent and simultaneous
with Criminal Court); permanent termination of parental rights; and
adjudication of juvenile delinquency status.
With respect to service of process in general and deliver-and-mail
substituted service in particular, this article will focus on service of
process in what is by far the most common proceeding in New York Family Court:
child support cases.
The Family Court’s original
jurisdiction over child support proceedings is derived from Article 4 of the
Family Court Act. Child support proceedings are commenced by the filing of a
child support Petition under Section 426 of the statute. The same Section
provides that, upon the filing of the Petition, the court “may cause” a Summons
to be issued (it invariably does).
Pursuant to Section 427(a) of the
FCA, the Summons, which includes a return date at which the respondent is to
initially appear, is to be served with the Petition in the following
manner:
Section 427. Service of summons
(a) Personal
service of a summons and petition may be made by delivery of a true copy
thereof to the person summoned at least eight days before the time stated
therein for appearance; or by delivery of a true copy thereof 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 a true copy
thereof to the person to be served at his last known residence at least eight
days before the time stated in the summons for appearance; proof of service
shall identify such person of suitable age and discretion and state the date,
time and place of service.
(b) If after a
reasonable effort, personal service is not made, the court may at any stage in
the proceedings make an order providing for substituted service in the manner
provided for substituted service in the civil practice law and rules [CPLR
308].
As to subdivision (a), the term “personal service,” as used therein,
mirrors the service methods of subdivisions (1) and (2) of CPLR 308 in that it
encompasses both in-hand delivery to the respondent as well as deliver-and-mail
service to a person of suitable age and discretion at the respondent’s actual
place of business, dwelling place or usual place of abode, followed by a mailing
to respondent at his or her last known residence. The mailing provision,
however, differs from CPLR 308(2) in that, since the Family Court Summons and
Petition includes a return date at which the respondent is to initially appear,
the mailing must be done at least eight days before the appearance date stated
on the Summons. Notably, although proof of such mailing would undoubtedly be
required in the courtroom on the return date, there is no requirement that
proof of mailing be filed with the court, as is the case with CPLR 308(2)
deliver-and-mail service.
Regarding “affix-and-mail” service, also referred to as “nail-and-mail”
service, none of the three subdivisions of FCA Section 427 contains any
provision for such service, evidently for privacy reasons (compare CPLR
308(4)). Instead, subdivision (b) of FCA Section 427 expressly incorporates by
reference the “court-ordered service” mechanism contained in subdivision (5) of
CPLR 308 in the event that due diligence efforts at in-hand service and deliver-and-mail
service prove futile “after a reasonable effort.”
The highly peculiar subdivision (c) of FCA Section 427, which provides
for service “by mail alone” and which is authorized “whether or not service is
attempted under subdivision (a) or (b) of this section [427],” is beyond the
scope of this article and will be discussed in a separate article discussing
substituted service methods other than deliver-and-mail service.
As long ago as 1950, the United
States Supreme Court famously stated that, in order to pass constitutional
muster, the method of service utilized must be “reasonably calculated, under
all the circumstances, to apprise interested parties of the pendency of the
action” (Mullane v. Central Hanover Trust Co., 339 U.S. 306, at 314).
The discussion in this article clearly demonstrates that the overriding
legislative intent of the deliver-and-mail provisions of CPLR 308(2), RPAPL
735(1) and FCA 427 is to safeguard the due process right of a defendant or
respondent under the Constitutions of the United States and New York to be
given adequate notice of legal proceedings initiated against him or her in
order to have a reasonable opportunity to contest such proceedings.
Nonetheless, for the New York trial attorney and process server, the
essential takeaway from this article is that in Summary landlord-tenant
proceedings, all methods of deliver-and-mail substituted service are not
created equal. We have seen that in cases where deliver-and-mail service under
the CPLR and Family Court Act are routinely sustained, the courts in summary
landlord-tenant proceedings will, pursuant to RPAPL 735, invalidate the same
service method and dismiss the proceeding for lack of personal jurisdiction
absent proof that the person of suitable age and discretion to whom the papers
are delivered actually resides or is employed at the premises where the service
is effected.
This concludes the final of this three-part article on the topic In Summary Proceedings, All Methods
of Substituted Service Are Not Created Equal. In our next article, we will
compare and contrast the “affix-and-mail” (a/k/a “nail-and-mail”) methods of
service provided for in CPLR 308(4) and RPAPL 735, with a discussion of the
latter’s expansion of the concept to include (i) “conspicuous place” service
and (ii) placement of process under the respondent tenant’s door. Additionally,
there being no provision for affix-and-mail service in Family Court
proceedings, we will instead examine what can fairly be characterized as the
somewhat muddled subdivision (c) of Family Court Act Section 427, which
authorizes service “by mail alone,” regardless of whether in-hand delivery or
substituted deliver-and-mail service is attempted.
#personaljurisdiction
#serviceofprocess
#substituted service
#cplr308
#rpapl735
#fca427
#foreclosure
#evictions
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