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A HEARING IS NECESSARY TO DETERMINE WHETHER SERVICE OF THE SUMMONS AND COMPLAINT ON THE DOORMAN OF DEFENDANT’S APARTMENT BUILDING WAS VALID (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a hearing should have been held about the validity of the service of the summons and complaint; i.e., whether service on the doorman of the defendant’s (Freeman’s) apartment building was valid service:

The plaintiff asserted that service of process was properly made pursuant to CPLR 308(2), relying on an affidavit of service indicating that service upon Freeman was effected by delivering the summons and complaint to a “doorman” in the apartment building where Freeman resided and by subsequently mailing the summons and complaint to Freeman … . While the affidavit of service constituted prima facie evidence of service of the summons and complaint pursuant to CPLR 308(2) … , the evidence submitted by Freeman in support of her motion, inter alia, to dismiss the complaint sufficiently rebutted the presumption of proper service to warrant a hearing. Freeman’s submissions included specific and detailed averments, as well as the affidavit of a security guard who worked in Freeman’s apartment building. The security guard averred that the summons and complaint were delivered to him at his desk on … , but that he was not authorized to receive packages or deliveries, that he did not deny the process server access to Freeman’s apartment, and that he did not inform Freeman of the delivery. Under these circumstances, the court 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 Freeman’s dwelling place extended to the security guard’s desk in her apartment building … . Edwards-Blackburn v City of New York, 2020 NY Slip Op 01907, Second Dept 3-18-20

 

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