## Facts

- Plaintiffs commenced an action against Alfred Steinberg and attempted service at his dwelling under CPLR 308(2).
- A process server went to Steinberg’s residence and encountered two teenagers (ages 14 and 15) inside the home.
- The teenagers refused to open the door or accept the papers.
- The process server left the summons outside the door and told the teenagers that he was leaving it there.
- On appeal, Steinberg did not dispute that the teenagers were persons of suitable age and discretion under CPLR 308(2).
- Steinberg challenged service as not constituting statutory “delivery” and argued that allowing such service would violate due process.
- Steinberg also argued the statutory mailing element was not proven because the employee who mailed the papers did not testify.

## Issues

1. Whether CPLR 308(2)’s “delivery” requirement is satisfied when a person of suitable age and discretion refuses to open the door, the process server leaves the summons outside the door, and informs that person that the summons is being left there.
2. Whether this method of substituted service satisfies due process even though it does not ensure actual notice.
3. Whether CPLR 308(2)’s mailing requirement may be proven through evidence of ordinary office practice and procedure rather than testimony from the specific employee who mailed the papers.

## Decision

- The Court of Appeals affirmed the Appellate Division and answered the certified question in the affirmative.
- The court held that CPLR 308(2) delivery can be accomplished by leaving the summons outside the defendant’s door when a person of suitable age and discretion refuses to accept it, so long as that person is told what is being done.
- The court rejected the due process challenge, holding that substituted service need only be reasonably calculated to give notice, not guaranteed to provide actual notice.
- The court rejected Steinberg’s proof-of-mailing objection, holding that evidence of standard office practice and procedure may establish mailing.

## Legal Principles

- Under CPLR 308(2), “delivery” may be satisfied when a process server leaves process in the general vicinity at the dwelling after refusal to accept service, provided the person to whom delivery is directed is informed that the papers are being left there.
- Statutory language in CPLR 308(1) and 308(2) is construed consistently regarding “delivering the summons,” permitting similar judicial constructions of the delivery requirement.
- Due process for substituted service requires a method reasonably calculated, under all circumstances, to apprise the defendant of the action; it does not require actual notice in every case.
- Statutory mailing associated with substituted service may be proven by competent evidence of routine office practice and procedure.

## Conclusion

The court upheld substituted service where a process server, after occupants of suitable age and discretion refused to open the door, left the summons outside the door and informed them, and it held that due process does not require actual notice and that mailing may be shown by proof of ordinary office practice.


Bossuk v. Steinberg, 58 N.Y.2d 916, 460 N.Y.S.2d 509 (1983)