"Beware
of Service Upon The Dead! A Trap for the
Unwary"
New York Law Journal, December 10, 2004 issue, pp.4 -5
By: Albert M. 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.
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.
