Summary
in Duffy v. St. Vincent's Hospital (1993, 1st Dept.) 198 A.D.2d 31, 603 N.Y.S.2d 47; where a security guard refused to accept a summons or allow it to be let at the security gate although he was aware of the purpose of the process server, it was held sufficient to leave it in the "general vicinity" including a nearby lawn".
Summary of this case from Touhamy v. GeraldoOpinion
November 4, 1993
Appeal from the Supreme Court, New York County (Carol Arber, J.).
We agree with the IAS Court that the process server satisfied the delivery requirement of CPLR 308 (2) in attempting to deliver the summons to the security guard at defendant's residential community. Since the affidavit of the guard indicates that he stopped the process server from entering the community at the security gate, the outer bounds of defendant's actual dwelling place could be deemed to extend to the guard's booth, where the process server's progress was arrested, and service at that location would have been proper had the guard accepted the summons (Costine v St. Vincent's Hosp. Med. Ctr., 173 A.D.2d 422). His refusal to do so, although aware that this was the purpose of the process server's presence, entitled the process server then to leave the summons in the "'general vicinity'" (Bossuk v Steinberg, 58 N.Y.2d 916, 918), which included the nearby lawn when the guard did not allow the papers to be left at the gate.
We have considered defendant's remaining contention that his denial of receipt of the summons in the mail raises a jurisdictional issue of fact, and find it to be without merit.
Concur — Sullivan, J.P., Rosenberger, Ellerin and Wallach, JJ.