Wednesday, July 2, 2014

The traverse hearing officer's determination is reversed.

 Practice point:  Defendants' witness at the traverse hearing worked in an office at which plaintiff's law firm had previously served process without challenge. This was known to the process server, who was a lawyer at the firm. A substantial responsibility held by defendants' witness was to accept service of subpoenas served on defendants. The process server testified that he handed the summons and complaint to defendants' witness after having asked several people in defendants' office where he should go to serve the papers, and having been directed towards the area where her cubicle was located. Defendants' witness could not recall  whether she ever had an encounter with the process server, and neither did she deny it.

The Appellate Division determined that, viewed objectively, these circumstances compel the conclusion that service on defendants was calculated to give fair notice of the claims against them. The Appellate Division noted that the hearing court did not appear to base its conclusion on any credibility determinations. Instead, it found that both defendants' witness and the process server were inexperienced with service of process, leading to their mutual confusion. The Appellate Division found this to be an insufficient basis to dismiss the complaint, and it was reinstated.

 Student note:  In evaluating whether service is to be sustained, the circumstances of the particular case must be weighed. In addition, CPLR 311, pursuant to which plaintiff purported to make service, is to be liberally construed in determining whether service was made on a corporation by delivering the summons to one of the persons delineated in the statute.

Case:  Wells v. Continuum Health Partners, Inc., NY Slip Op 04850 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Qualified privilege.