"Beware of Service Upon The Dead! A Trap for the Unwary"
New York Law Journal, December 10, 2004 issue, pp 4-5
By: Albert Rizzo
A man walks up to the front entrance of a home in Brooklyn. He knocks. A young woman answers the door. She appears of suitable age, and appears to have a certain amount of discretion. The man asks if it is the home of Ms. Smith. The young woman responds that it is. At that point, the man pulls papers out of his shoulder bag, captioned: “Summons and Complaint.” “This is for her,” he says. He takes the young woman’s name and leaves. Service of process has been effectuated . . . not necessarily. Unknown to the process server, Ms. Smith is dead. Her daughter accepted the papers, but did not tell him that her mother died four months ago.
The legal action continues and Ms. Smith, rather unmiraculously, does no appear in the action. Her children are silent and a default judgment is ultimately entered against her. Years of litigation later, the default judgment is sought to be enforced against Ms. Smith. The daughter now appears in the action and moves to vacate the default judgment. The plaintiff discovers for the first time in motion papers that defendant Smith is dead, and, in fact, was dead at the time that process was served in accordance with CPLR §308(2) upon a person of “suitable age and discretion.”
According to at least one court, the default judgment must be vacated because jurisdiction over defendant Smith was never obtained as she was deceased at the time of service of process. [1]
Jurisdiction Over Deceased Persons
The fact-pattern highlights a conflict between the unwillingness of courts to find jurisdiction over a deceased person and legislative approval of service of process by “substituted service,” the resolution of which requires the utmost diligence by the practitioner.
Service of process upon a defendant who is deceased at the time of the attempted service does not confer jurisdiction over that person because jurisdiction cannot be obtained over a person who is deceased. Hemphill v. Rock, 87 A..D.2d 836, 449 N.Y.S.2d 267 (2d Dept. 1982). Moreover, if the defendant is known to be deceased, an action cannot be commenced upon the deceased defendant before the appointment of the executor or administrator of the decedent’s estate. Laurenti v. Teatom, 210 A.D.2d 300, 619 N.Y.S.2d 754 (2d Dept. 1994). If such executor or administrator has been appointed, then the party must be substituted by such executor or administrator. CPLR §1015. If one is not appointed, then a representative must be appointed for the estate, pursuant to SCPA §1002, and must be served with process. The same is all true of the defendant dies during the course of the litigation. CPLR §1015.
However, what happens when process is otherwise properly effectuated under one of the “alternate” or “indirect” methods of service prescribed by CPLR §308(2), commonly referred to as “substituted service,” but the defendant is deceased and unknown by the plaintiff to be deceased until the end of the litigation?
CPLR §308(2) provides for service of process upon a natural person “by delivering the summons within the state to a person of suitable age and discretion at the . . dwelling place or usual place of abode of the person to be served and by . . . mailing the summons to the person to be served at his or her last known residence . . . .”
Under this method of service, there is no statutory requirement that a process server first ascertain whether the person to be served is deceased. Nor is the process server required, unlike the “nail and mail” provisions of CPLR §308(4), to exercise any kind of due diligence before delivering the summons to a suitable person who then accepts the summons on behalf of the party.
Substituted Service
Substituted service, as a method of service, affords a defendant fair notice of the commencement of proceedings, but does not place an unreasonable burden on persons seeking to commence an action. 1 New York Civil Practice, Weinstein-Korn-Miller 308.13; see Community General Hospital v. Baker, 93 Misc.2d 124, 402 N.Y.S.2d 536 (Sup.Ct. 1978). Nor does it guarantee that a defendant will receive actual notice. Indeed, in the case of missing persons, for example, “employment of indirect, even futile means of notification is all that the situation permits.” Harkness v. Doe, 261 A.D.2d 846, 689 N.Y.S.2d 586 (4th Dept. 1999)(citing Mullane v. Central Hanover Bank & Trust Co., 39 U.S. 306, 317, 94 L.Ed. 865 (1950).
The New York Court of Appeals in Bossuk v. Steinberg, 58 N.Y.2d 916, 460 N.Y.S.2d 509 (1983), held that valid service of process had been effected under CPLR §308(2) even though the defendant had attempted to evade service. The Court of Appeals stated: It is “hornbook law that a constitutionally proper method of effecting substituted service need not guarantee that in all cases the defendant will in fact receive actual notice.” 58 N.Y.2d at 918.
While no case law appears to address the issue directly, and there is no provision under the CPLR for service of process on a person who is not known to be deceased, an analogous case was before the Appellate Division, First Department, in Montes v. Seda, 208 A.D.2d 388, 626 N.Y.S.2d 61 (1st Dept. 1994) serves to perhaps underscore the legislative intent of CPLR §308(2). In Montes, an incarcerated person was “served” at her former dwelling place by serving a person of suitable age and discretion. The lower court specifically found that service was in fact made at a time when the plaintiff did not know of the defendant’s imprisonment. See Montes v. Seda, 157 Misc.2d 895, 599 N.Y.S.2d 401, 402 (Sup. Ct. NY Cty 1993). The First Department affirmed the lower court’s ruling and held that such service, even though the defendant could not have possibly received the process because of her incarceration, was a proper method of service. 626 N.Y.S.2d at 61.
Defendant Deceased or Alive
Similarly, in the fact pattern recited above, although Ms. Smith is deceased at the time service is made, and she could not possibly have received the Summons and Complaint, this fact was not known to the plaintiff. Without this knowledge, service of process upon a person of suitable age and discretion, who described herself as the “daughter” at Ms. Smith’s actual residence prior to her demise, would presumably be proper. All that CPLR §308(2) then requires is that another copy of the Summons be mailed to the same address within 20 days. Nothing further is required to be done under the provisions of the CPLR. By the plain language of CPLR §308(2) and the legislative history of that section it is of no matter that Ms. Smith had passed away four months before her daughter was served with process. All that the CPLR and New York case law require is that a defendant be served by one of the statutory methods prescribed without regard to whether the defendant is deceased or alive.
On the other side of the coin, however, is CPLR §1015 and the decisions holding that when there is a death of a party during the pendency of the action, or where the death is known to the plaintiff prior to commencement of the action, jurisdiction cannot be obtained over, or judgment entered against, the decedent. Laurenti v. Teatom, supra. The statute and case law support the notion of the inherent unfairness of exercising jurisdiction over a deceased defendant, and mandate the substitution of a representative of the estate.
In Laurenti, the plaintiffs knew that the defendant was deceased and also knew that no personal representative of the estate had been appointed. So, plaintiffs obtained an order permitting expedient service upon the defendant’s insurance carrier and served the carrier. However, the court held that service upon the insurance carrier did not confer jurisdiction over the estate. The court observed that the remedy for the plaintiff is to petition the Surrogate’s Court pursuant to SCPA §1002 for appointment of the Public Administrator as the personal representative of the estate. 619 N.Y.S.2d at 755. Thus, the court held, the plaintiff was unable to commence an action during the period between the death of a potential defendant and the appointment of a representative of the estate.
No Knowledge of Death
Caught in the position of not knowing whether a defendant is deceased at the time of service, there are very few ways, if any, that a plaintiff can know, or be deemed to have known, of the defendant’s demise at the time plaintiff commences the action. Moreover, even if plaintiff’s process server is instructed to conduct a search of Surrogate’s Court dockets for the filing of any probate or administrative proceedings, such efforts would not necessarily yield accurate information since (a) the decedent’s estate may not have commenced any such proceedings, and (b) even if it did, such proceedings may have been brought in any number of jurisdictions where the decedent could have been last domiciled. Indeed, such a rule that would so obligate a plaintiff would be extremely onerous, an unreasonable burden on every plaintiff seeking to commence an action, and would be inconsistent with the statutory intent behind permissible “indirect” methods of service of process. See 1 N.Y. Civil Practice, Weinstein-Korn-Miller 308.
No rule of law in this State mandates that a plaintiff ascertain whether a potential defendant is deceased prior to serving process, especially where, as in the fact pattern, process is accepted by a person of suitable age and discretion at the defendant’s actual known residence prior to her death. Nonetheless, it is possible that a court could refuse to find jurisdiction over a deceased defendant notwithstanding full compliance with statutory prerequisites for substituted service. See Dime Savings Bank, supra.
Perhaps a solution may be to legislatively mandate that the person served with process have an affirmative obligation to advise a plaintiff of the demise of the named party on whose behalf the person accepted the process or else risk the consequences of a default judgment that cannot be vacated.
Interests Irreconcilable?
However, for the moment the competing interests appear irreconcilable. And until such time as the interests are reconciled and are addressed either legislatively or judicially, it may be wise for a plaintiff’s counsel to inquire of the person served with process shortly after a defendant’s time to answer or appear has lapsed, whether the defaulting party is dead or alive, and to follow up with any information regarding the existence and whereabouts of the defaulting defendant. Counsel may also desire to instruct a process server to conduct a Surrogate’s Court docket search (as limited in its usefulness as it may be) in at least the county where the deceased defendant was known to last reside. The search may result in finding that a probate or administrative proceeding was commenced.
While nothing obligates a plaintiff to make such efforts or incur such costs, word to the wise, the alternative to a little due diligence may be an unenforceable judgment, vacated after years of litigation.
[1] Dime Savings Bank of New York FSB v. Luna, 302 A.D.2d 558, 755 N.Y.S.2d 300 (2d Dept. 2003). While the Appellate Division’s decision does not recite the complete facts of the case, the fact pattern used in this article is based upon the underlying facts of that case. The author represented the bona fide purchaser of the real property that was the subject of the mortgage foreclosure action commenced by the plaintiff.
A man walks up to the front entrance of a home in Brooklyn. He knocks. A young woman answers the door. She appears of suitable age, and appears to have a certain amount of discretion. The man asks if it is the home of Ms. Smith. The young woman responds that it is. At that point, the man pulls papers out of his shoulder bag, captioned: “Summons and Complaint.” “This is for her,” he says. He takes the young woman’s name and leaves. Service of process has been effectuated . . . not necessarily. Unknown to the process server, Ms. Smith is dead. Her daughter accepted the papers, but did not tell him that her mother died four months ago.
The legal action continues and Ms. Smith, rather unmiraculously, does no appear in the action. Her children are silent and a default judgment is ultimately entered against her. Years of litigation later, the default judgment is sought to be enforced against Ms. Smith. The daughter now appears in the action and moves to vacate the default judgment. The plaintiff discovers for the first time in motion papers that defendant Smith is dead, and, in fact, was dead at the time that process was served in accordance with CPLR §308(2) upon a person of “suitable age and discretion.”
According to at least one court, the default judgment must be vacated because jurisdiction over defendant Smith was never obtained as she was deceased at the time of service of process. [1]
Jurisdiction Over Deceased Persons
The fact-pattern highlights a conflict between the unwillingness of courts to find jurisdiction over a deceased person and legislative approval of service of process by “substituted service,” the resolution of which requires the utmost diligence by the practitioner.
Service of process upon a defendant who is deceased at the time of the attempted service does not confer jurisdiction over that person because jurisdiction cannot be obtained over a person who is deceased. Hemphill v. Rock, 87 A..D.2d 836, 449 N.Y.S.2d 267 (2d Dept. 1982). Moreover, if the defendant is known to be deceased, an action cannot be commenced upon the deceased defendant before the appointment of the executor or administrator of the decedent’s estate. Laurenti v. Teatom, 210 A.D.2d 300, 619 N.Y.S.2d 754 (2d Dept. 1994). If such executor or administrator has been appointed, then the party must be substituted by such executor or administrator. CPLR §1015. If one is not appointed, then a representative must be appointed for the estate, pursuant to SCPA §1002, and must be served with process. The same is all true of the defendant dies during the course of the litigation. CPLR §1015.
However, what happens when process is otherwise properly effectuated under one of the “alternate” or “indirect” methods of service prescribed by CPLR §308(2), commonly referred to as “substituted service,” but the defendant is deceased and unknown by the plaintiff to be deceased until the end of the litigation?
CPLR §308(2) provides for service of process upon a natural person “by delivering the summons within the state to a person of suitable age and discretion at the . . dwelling place or usual place of abode of the person to be served and by . . . mailing the summons to the person to be served at his or her last known residence . . . .”
Under this method of service, there is no statutory requirement that a process server first ascertain whether the person to be served is deceased. Nor is the process server required, unlike the “nail and mail” provisions of CPLR §308(4), to exercise any kind of due diligence before delivering the summons to a suitable person who then accepts the summons on behalf of the party.
Substituted Service
Substituted service, as a method of service, affords a defendant fair notice of the commencement of proceedings, but does not place an unreasonable burden on persons seeking to commence an action. 1 New York Civil Practice, Weinstein-Korn-Miller 308.13; see Community General Hospital v. Baker, 93 Misc.2d 124, 402 N.Y.S.2d 536 (Sup.Ct. 1978). Nor does it guarantee that a defendant will receive actual notice. Indeed, in the case of missing persons, for example, “employment of indirect, even futile means of notification is all that the situation permits.” Harkness v. Doe, 261 A.D.2d 846, 689 N.Y.S.2d 586 (4th Dept. 1999)(citing Mullane v. Central Hanover Bank & Trust Co., 39 U.S. 306, 317, 94 L.Ed. 865 (1950).
The New York Court of Appeals in Bossuk v. Steinberg, 58 N.Y.2d 916, 460 N.Y.S.2d 509 (1983), held that valid service of process had been effected under CPLR §308(2) even though the defendant had attempted to evade service. The Court of Appeals stated: It is “hornbook law that a constitutionally proper method of effecting substituted service need not guarantee that in all cases the defendant will in fact receive actual notice.” 58 N.Y.2d at 918.
While no case law appears to address the issue directly, and there is no provision under the CPLR for service of process on a person who is not known to be deceased, an analogous case was before the Appellate Division, First Department, in Montes v. Seda, 208 A.D.2d 388, 626 N.Y.S.2d 61 (1st Dept. 1994) serves to perhaps underscore the legislative intent of CPLR §308(2). In Montes, an incarcerated person was “served” at her former dwelling place by serving a person of suitable age and discretion. The lower court specifically found that service was in fact made at a time when the plaintiff did not know of the defendant’s imprisonment. See Montes v. Seda, 157 Misc.2d 895, 599 N.Y.S.2d 401, 402 (Sup. Ct. NY Cty 1993). The First Department affirmed the lower court’s ruling and held that such service, even though the defendant could not have possibly received the process because of her incarceration, was a proper method of service. 626 N.Y.S.2d at 61.
Defendant Deceased or Alive
Similarly, in the fact pattern recited above, although Ms. Smith is deceased at the time service is made, and she could not possibly have received the Summons and Complaint, this fact was not known to the plaintiff. Without this knowledge, service of process upon a person of suitable age and discretion, who described herself as the “daughter” at Ms. Smith’s actual residence prior to her demise, would presumably be proper. All that CPLR §308(2) then requires is that another copy of the Summons be mailed to the same address within 20 days. Nothing further is required to be done under the provisions of the CPLR. By the plain language of CPLR §308(2) and the legislative history of that section it is of no matter that Ms. Smith had passed away four months before her daughter was served with process. All that the CPLR and New York case law require is that a defendant be served by one of the statutory methods prescribed without regard to whether the defendant is deceased or alive.
On the other side of the coin, however, is CPLR §1015 and the decisions holding that when there is a death of a party during the pendency of the action, or where the death is known to the plaintiff prior to commencement of the action, jurisdiction cannot be obtained over, or judgment entered against, the decedent. Laurenti v. Teatom, supra. The statute and case law support the notion of the inherent unfairness of exercising jurisdiction over a deceased defendant, and mandate the substitution of a representative of the estate.
In Laurenti, the plaintiffs knew that the defendant was deceased and also knew that no personal representative of the estate had been appointed. So, plaintiffs obtained an order permitting expedient service upon the defendant’s insurance carrier and served the carrier. However, the court held that service upon the insurance carrier did not confer jurisdiction over the estate. The court observed that the remedy for the plaintiff is to petition the Surrogate’s Court pursuant to SCPA §1002 for appointment of the Public Administrator as the personal representative of the estate. 619 N.Y.S.2d at 755. Thus, the court held, the plaintiff was unable to commence an action during the period between the death of a potential defendant and the appointment of a representative of the estate.
No Knowledge of Death
Caught in the position of not knowing whether a defendant is deceased at the time of service, there are very few ways, if any, that a plaintiff can know, or be deemed to have known, of the defendant’s demise at the time plaintiff commences the action. Moreover, even if plaintiff’s process server is instructed to conduct a search of Surrogate’s Court dockets for the filing of any probate or administrative proceedings, such efforts would not necessarily yield accurate information since (a) the decedent’s estate may not have commenced any such proceedings, and (b) even if it did, such proceedings may have been brought in any number of jurisdictions where the decedent could have been last domiciled. Indeed, such a rule that would so obligate a plaintiff would be extremely onerous, an unreasonable burden on every plaintiff seeking to commence an action, and would be inconsistent with the statutory intent behind permissible “indirect” methods of service of process. See 1 N.Y. Civil Practice, Weinstein-Korn-Miller 308.
No rule of law in this State mandates that a plaintiff ascertain whether a potential defendant is deceased prior to serving process, especially where, as in the fact pattern, process is accepted by a person of suitable age and discretion at the defendant’s actual known residence prior to her death. Nonetheless, it is possible that a court could refuse to find jurisdiction over a deceased defendant notwithstanding full compliance with statutory prerequisites for substituted service. See Dime Savings Bank, supra.
Perhaps a solution may be to legislatively mandate that the person served with process have an affirmative obligation to advise a plaintiff of the demise of the named party on whose behalf the person accepted the process or else risk the consequences of a default judgment that cannot be vacated.
Interests Irreconcilable?
However, for the moment the competing interests appear irreconcilable. And until such time as the interests are reconciled and are addressed either legislatively or judicially, it may be wise for a plaintiff’s counsel to inquire of the person served with process shortly after a defendant’s time to answer or appear has lapsed, whether the defaulting party is dead or alive, and to follow up with any information regarding the existence and whereabouts of the defaulting defendant. Counsel may also desire to instruct a process server to conduct a Surrogate’s Court docket search (as limited in its usefulness as it may be) in at least the county where the deceased defendant was known to last reside. The search may result in finding that a probate or administrative proceeding was commenced.
While nothing obligates a plaintiff to make such efforts or incur such costs, word to the wise, the alternative to a little due diligence may be an unenforceable judgment, vacated after years of litigation.
[1] Dime Savings Bank of New York FSB v. Luna, 302 A.D.2d 558, 755 N.Y.S.2d 300 (2d Dept. 2003). While the Appellate Division’s decision does not recite the complete facts of the case, the fact pattern used in this article is based upon the underlying facts of that case. The author represented the bona fide purchaser of the real property that was the subject of the mortgage foreclosure action commenced by the plaintiff.
