## Facts

- Ralph Macchia sued Salvatore Russo for negligence arising from injuries Macchia sustained on February 27, 1975, while riding as a passenger in Russo’s car.
- On February 15, 1978, a process server, accompanied by Macchia, went to Russo’s residence to serve a summons.
- Outside the home, the process server handed the summons to Russo’s son, John Russo, who was washing a car.
- John stated the process server asked “Mr. Russo?” and John answered “Yes” before receiving the papers; the process server stated he said “Sal Russo?” and John did not respond before receiving them.
- John immediately brought the papers into the house and handed them to Salvatore Russo.
- The trial court denied Russo’s motion for summary judgment based on improper service; the Appellate Division reversed and dismissed for lack of jurisdiction; the Court of Appeals affirmed.

## Issues

1. Whether “personal delivery” under CPLR 308(1) is satisfied when a summons is delivered to the defendant’s son outside the residence and the son promptly hands it to the defendant inside.
2. Whether actual notice, lack of prejudice, or a process server’s reasonable mistake can cure noncompliance with CPLR 308(1).

## Decision

- The Court of Appeals affirmed the Appellate Division and dismissed the complaint for lack of valid service.
- Delivery of the summons to the defendant’s son outside the house, followed by the son’s delivery to the defendant inside, was not personal service on the defendant under CPLR 308(1).
- The court rejected arguments that proximity in time and space, the process server’s alleged reasonableness, or the defendant’s receipt of the summons established jurisdiction.

## Legal Principles

- CPLR 308(1) requires service “by delivering the summons within the state to the person to be served”; delivery to someone else is not compliant with the method chosen.
- Jurisdiction depends on proper statutory service; actual notice to the defendant does not confer personal jurisdiction when the statutory mode of service is not followed.
- A process server’s reasonable belief or mistake does not substitute for compliance with the formal requirements of CPLR 308(1).
- Lack of prejudice to the defendant does not cure defective service where delivery was not made to the defendant.

## Conclusion

Because CPLR 308(1) requires direct delivery of the summons to the defendant, handing the summons to the defendant’s son outside the home—despite the son’s immediate transfer of the papers to the defendant—did not effect valid personal service, and the action was dismissed for lack of jurisdiction.


Macchia v. Russo, 67 N.Y.2d 592 (N.Y. 1986)