Marshall v Hull

[*1] Marshall v Hull 2006 NY Slip Op 51237(U) Decided on June 28, 2006 Civil Court Of The City Of New York, New York County Lebovits, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 28, 2006
Civil Court of the City of New York, New York County

Christopher N. Marshall and ELEANOR HSU MARSHALL, Petitioners,

against

Ivan R. Hull and ANNABELL INGALL, Respondents.



L&T 072896/06



Adam Leitman Bailey, New York City (Andrew Georgakopoulos of counsel), for petitioners.

Moss & Yolleck, New York City (David L. Moss of counsel), for respondents.

Gerald Lebovits, J.

In this nonpayment proceeding, petitioners move to strike respondents' first affirmative defense: that this court lacks personal jurisdiction over respondents. Respondents contend that petitioners failed properly to serve the petition and notice of petition. Service of process was made on the doorman of the building where respondents reside. Respondents argue that the doorman was incapable of accepting service on respondents' behalf. According to respondents, the doorman is not "a person of suitable age and discretion who resides or is employed at the property sought to be recovered." (RPAPL 735 [1].)

Only in some cases may a doorman accept substituted service for a tenant. (See e.g. F.I. duPont, Glore Forgan & Co. v Chen, 41 NY2d 794, 795 [1977].) When a process server is denied access to the actual apartment, the dwelling place extends to the point "at which the process server's progress is arrested." (Id. at 797.) If the doorman barred the process server from going to respondents' apartment, then substituted service was performed properly. If, however, the process server made no attempt to effect service at respondents' apartment, then the actual [*2]dwelling place does not extend to the building lobby, and court lacks personal jurisdiction. (E.g. Fed. Home Loan Mort. Corp. v 666 St. Nicholas, 1995 WL 628998, at *3 [US Dist Ct SD NY, Oct 25, 1995] ["When the server is free to proceed to the defendant's actual apartment and fails to do so, however, even delivery to a doorman is improper."]; Soils Engineering Srvs., Inc. v Donald, 258 AD2d 425, 426 [1st Dept 1999, mem]; McCormack v Goldstein, 204 AD2d 121, 122 [1st Dept 1994, mem], lv denied 85 NY2d 801 [1995].)

Neither side has submitted any affidavit from the doorman, the process server, or any respondent that the doorman or any respondent halted or did not halt service, and the doorman, who is petitioners' employee (petitioner is a shareholder in the subject cooperative apartment, and respondents are subtenants), neither resides in nor is employed at the subject apartment—the precise property sought to be recovered.

Absent facts necessary to determine whether service was proper, the motion to strike the affirmative defense of jurisdiction is denied. A court can resolve this question only after a traverse hearing. (See Reliance Audio Visual Corp. v Bronson, 141 Misc 2d 671, 673-674 [Hous Part, Civ Ct, NY County 1988] [holding a hearing on whether doorman could accept service under RPAPL 735 [1]].) This proceeding is adjourned for traverse and trial to July 10, 2006.

This opinion is the court's decision and order.

Dated: June 28, 2006

J.H.C.