§ 308.Personal service upon a natural person.

(See also Advisory Committee note preceding § 301 under subheadings “Service of summons generally” and “Substituted service.”).

The provision in paragraph 1 for service by personal delivery to the party in person is substantially the same as that of CPA § 225(3).

The substituted service provisions found in the CPA and their requirement that a court order be obtained are omitted. Such orders are generally granted as a matter of course and to require them is wasteful of both the lawyer’s and the court’s time. However, the replacement for substituted service will only be used if service by delivery to the person to be served cannot be made with due diligence. The replacement for the method of substituted service provides for mailing plus either affixing the summons on the door, or delivery of the summons to a person of suitable age and discretion, at the place of business, dwelling house or usual place of abode of the person to be served. This method is based partly upon the method for service used in summary proceedings to recover real property. It is calculated to insure that actual notice is given to the defendant. The “due diligence” which must be used in attempting to deliver personally to the person to be served before substituted service may be made is based upon the former CPA requirements. A number of attempts to serve will be sufficient. They should be specified in the affidavit of service in much the same way that the former affidavit on a motion for an order for substituted service specified them. The requirement of mailing is not found in the Federal rules and rules of other states permitting service by delivery to a person of suitable age and discretion. See Fed R Civ P 4(d)(1); Pa Stat Ann tit 12, RCP 1009(b) (Purdon) (1951); NJ R Civ P 4:4-4. See also CPA § 231(1) (mailing is not required where summons left with a “person of proper age”). However, the Committee has accepted the suggestions of a substantial number of members of the bar at public hearings and by private communication that mailing be required.

1986 Recommendations of Advisory Committee on Civil Practice:

The Committee recommends the repeal of the unnumbered last paragraph of CPLR 308, which mandates that a notice of default judgment, in addition to that contained in the summons, be served on a defendant who is a natural person in an action arising out of a consumer credit transaction, and the transfer of this provision, clarified and improved, into CPLR 3215. This measure does not propose, however, to alter in any essential aspect the protection against sewer service which the present law, enacted by chapter 344 of the Laws of 1977, provides.

The language of the 1977 legislation, although salutary in intent, has given rise to technical problems. The procedure would be improved by the recommended changes, as follows:

1. The application of the provision to actions for nonpayment of a contractual obligation would be changed to those arising from a consumer credit transaction. This change is consistent with the purpose of the provision to protect against sewer service, which is rare in contract actions except those arising from consumer credit transactions.

2. Actions affecting title to property would be excepted. Title companies are justly apprehensive that, in such actions, the requirement to give additional notice could be troublesome in that inadvertent failure to do so allows vacatur of the default judgment, thus generating challenges to title many years after entry of judgment.

3. In conformance with general practice, provision would be made for service of the additional notice by the employee of an attorney, as well as by the party or his attorney, as at present.

4. It would be made clear that the additional notice may be mailed not only after, but also simultaneously with service of process.

5. Where there has been compliance with the additional notice requirements, failure of the defendant to receive such notice shall not preclude entry of, or invalidate, the default judgment. Without this provision, the plaintiff would be penalized unfairly by being prevented from obtaining a judgment where it is impossible to serve the additional notice on the defendant.

This measure would relocate the provisions governing default notices, now located in CPLR 308 (service of process), to a new paragraph 3 of CPLR 3215(f) (notice requirements for entry of default judgment), where it more logically belongs. CPLR 3215(e) would be amended to correct an obsolete cross-reference to CPLR 308; and a number of other minor verbal and mechanical improvements would also be made.

1994 Recommendations of Advisory Committee on Civil Practice:

The Committee recommends that a new subdivision 6 be added to CPLR 308, governing personal service upon a natural person, to provide that where a person designates, through regular solicitation or advertisement, an address, including a private mail drop, as the address to which business correspondence should be mailed, indicating this on business letterhead, or in the telephone yellow pages, or on business vehicles, etc., such address, including a mail drop, should suffice as “the actual place of business” for the purpose of receiving service of process.

Frequently, for purposes of convenience, persons doing business select a commercial mail drop to receive their business correspondence. The mail drop affords an actual business address, not a box number, and this address may be placed on the person’s business letterhead, advertisements in the yellow pages and elsewhere, and printed on the business’s commercial vehicles. The commercial mail drop services many businesses, and technically may not be the “actual place of business” of the persons who receive mail there. Neither is the commercial mail drop an agent designated to receive service. Plaintiffs with claims against mailing a summons to a person at “his or her actual place of business’’, have no way of knowing that the so-called ”business address“ is a mere mail drop, and many unknowingly make improper service by serving the defendant at the mail drop address.

The Committee believes that where a person publicly designates a mail drop address as his or her place for receiving business mail, a person having a claim against such person should be able to rely upon the address as constituting the person’s “actual place of business” as understood in CPLR 308. New subdivision 6 would so provide.

Add, L 1970, ch 852, § 1; amd, L 1971, ch 176, § 1; L 1974, ch 765, § 2, eff July 7, 1974; L 1977, ch 344, § 1; L 1986, ch 77, § 1, eff Jan 1, 1987; L 1987, ch 115, § 1; L 1988, ch 125, §§ 1, 2, eff Jan 1, 1989; L 1994, ch 131, § 1, eff Jan 1, 1995.