KOSTELANETZ FINK v. HUI QUN ZHAO (1999)

Defendant moves for an order dismissing the action pursuant to C.P.L.R. § 3211(a)(8), contending that plaintiff's attempt to serve him by mail under C.P.L.R. § 312-a was ineffective since defendant never signed or returned the acknowledgment-of-receipt form required thereunder.   Nor did plaintiff attempt to serve defendant by any other means upon defendant's failure to return the required acknowledgment form.

Plaintiff opposes the motion and cross-moves for an order dismissing defendant's lack-of-personal-jurisdiction defense.   Plaintiff argues that defendant's challenge to personal jurisdiction, arising from defendant's failure to return the acknowledgment-of-receipt form, was effectively waived by defendant's interposing of an answer with a counterclaim, and by defendant's demand for a bill of particulars.   Plaintiff maintains that C.P.L.R. § 320(b), which permits a defendant to couple an appearance/answer with a challenge to personal jurisdiction, does not apply when plaintiff attempts to serve by mail.

The motion and cross-motion require the Court to decide whether service by mail under C.P.L.R. § 312-a may be deemed effective where the defendant, instead of returning the acknowledgment form as statutorily required, answers the complaint, asserting an affirmative jurisdictional defense.   The motions also require the Court to decide whether the waiver exception in C.P.L.R. § 320(b) applies when plaintiff attempts to serve the defendant by mail under C.P.L.R. § 312-a.

Background

Plaintiff law firm is suing its former client for, inter alia, breach of contract, claiming that defendant failed to pay certain fees arising from plaintiff's representation of defendant in various prior actions.   On June 22, 1998, plaintiff attempted to personally serve defendant by mail pursuant to C.P.L.R. § 312-a, by mailing defendant the summons and complaint and the acknowledgement-of-receipt form prescribed by C.P.L.R. § 312-a(d).  Although defendant admits that he received the summons and complaint in the mail, he alleges (and plaintiff concedes) that he did not return the acknowledgement-of-receipt form to plaintiff within thirty days of the mailing.   Nor did defendant ever return the acknowledgement-of-receipt form to plaintiff.

Indeed, instead of returning the acknowledgment form, defendant served an answer upon plaintiff forty-six days after the initial mailing of the summons.   In his answer, defendant alleged, as an affirmative defense, that “[t]he Court lacks jurisdiction over the person of the defendant because service of the summons & complaint was not in full compliance with Section 308 of the C.P.L.R.” Defendant also asserted several counterclaims against plaintiff in his answer.   Further, defendant served, along with his answer, a demand for a bill of particulars.

Following the service of his answer, defendant timely moved to dismiss the action for lack of personal jurisdiction pursuant to C.P.L.R. § 3211(a)(8).   Plaintiff opposed the motion and cross-moved to strike that affirmative defense, arguing that it was waived by, inter alia, defendant's appearance and answer.   Plaintiff contends that the lack-of-jurisdiction defense was also waived because the affirmative defense, as alleged in defendant's answer, lacked specificity since it alleged that “service ․ was not in full compliance with Section 308 of the C.P.L.R.,” when in fact plaintiff attempted service under Section 312-a of the C.P.L.R.

Discussion

In 1989, the Legislature, building upon the federal experience, adopted a less expensive and more efficient way to effect personal service:  service by first class mail.   The statute, C.P.L.R. § 312-a(a), provides, in pertinent part, that:

a summons and complaint ․ may be served by the plaintiff or any other person by mailing to the person or entity to be served, by first class mail, postage prepaid, a copy of the summons and complaint ․ together with two copies of a statement of service by mail and acknowledgement of receipt in the form [prescribed by statute]․

See also New York City Civil Court Act § 403 (expressly incorporating the personal service by mail provision, C.P.L.R. § 312-a, as an alternative means of service).

Should defendant wish to accept service by mail, defendant would be required to complete the acknowledgment-of-receipt form and mail or deliver it to plaintiff within 30 days of receipt.   C.P.L.R. § 312-a(b).   Although C.P.L.R. § 312-a(b) provides that service by mail is “complete on the date the signed acknowledgement of receipt is mailed or delivered” to the plaintiff, in Civil Court such service would be complete only upon the filing of proof of service (i.e., the signed acknowledgment-of-receipt form).   See N.Y.C.C.C.A. § 410(b).

 Defendant, of course, is not required to sign and return the acknowledgment-of-receipt form to plaintiff.  Patterson v. Balaquiot, 188 A.D.2d 275, 590 N.Y.S.2d 469 (1st Dept.1992);  Matter of Shenko Electric, Inc. v. Hartnett, 161 A.D.2d 1212, 1213, 558 N.Y.S.2d 859 (4th Dept.1990).   Should defendant fail to return the acknowledgment form, however, defendant later would be required to pay plaintiff the reasonable expenses which may be incurred by plaintiff's resort to an “alternative method” of service of process.   C.P.L.R. § 312-a(f).

 Further, if defendant does not mail or deliver the acknowledgment to plaintiff within 30 days, “the plaintiff is [placed] on notice that his attempted mail service has aborted [and] [h]e must then resort to other methods of service provided in C.P.L.R. article 3.” McLaughlin, Practice Commentaries, McKinney's Consolidated Laws of New York, Civil Practice Law and Rules (Book 7B), C312-a:4, at 424.   As the Appellate Division stated in Matter of Shenko Electric, Inc. v. Hartnett, supra, 161 A.D.2d at 1213, 558 N.Y.S.2d 859, “[i]f the acknowledgment of receipt is not mailed or returned to the sender, the sender is required to effect personal service in another manner.”   See also Miron Lumber Co., Inc. v. Phylco Realty Development Co., 151 Misc.2d 139, 143, 572 N.Y.S.2d 992 (Civil Court, Kings Co.1991) (J. Rivera).   In effect, the success of service by mail is dependent in large part upon the cooperation of the served party (i.e., the defendant).

Here, there is no question that defendant, having failed to mail or deliver the acknowledgment-of-receipt form back to plaintiff within thirty days as required by C.P.L.R. § 312-a, refused to cooperate with plaintiff's attempted service.   Thus, plaintiff's attempted use of service by mail, while applaudable as an inexpensive and efficient means of service, failed to effect personal service upon defendant in this case.   Indeed, having failed to receive the acknowledgment form within thirty days (plus any applicable mailing period), plaintiff was placed “on notice that his attempted mail service has aborted.”   McLaughlin, Practice Commentaries, McKinney's Consolidated Laws of New York, Civil Practice Law and Rules (Book 7B), C312-a:4, at 424.   At that point, plaintiff was obliged to “resort to other methods of service” (ibid.), at defendant's subsequent expense.   C.P.L.R. § 312-a(f).   See Miron Lumber Co. v. Phylco Realty Development Co., supra, 151 Misc.2d at 143, 572 N.Y.S.2d 992 (“it was incumbent upon plaintiff to serve defendant with process under C.P.L.R. article 3 once defendant failed to return the acknowledgment of service [form]”).

 That defendant, in response to the summons and complaint, served an answer upon plaintiff instead of the acknowledgment form is not a sufficient reason to overlook the failure to strictly comply with the statutory requirements of C.P.L.R. § 312-a.   It is well settled that “service [of process] is only effective ․ when it is made pursuant to the appropriate method authorized by the C.P.L.R.” Markoff v. South Nassau Community Hospital, 61 N.Y.2d 283, 288, 473 N.Y.S.2d 766, 461 N.E.2d 1253 (1984).   See Macchia v. Russo, 67 N.Y.2d 592, 595, 505 N.Y.S.2d 591, 496 N.E.2d 680 (1986);  Feinstein v. Bergner, 48 N.Y.2d 234, 241, 422 N.Y.S.2d 356, 397 N.E.2d 1161 (1979).   Thus, “[a]ctual notice alone will not sustain ․ service or subject a person to the court's jurisdiction when there has not been compliance with prescribed conditions of service.”  Markoff v. South Nassau Community Hospital, supra, 61 N.Y.2d at 288, 473 N.Y.S.2d 766, 461 N.E.2d 1253.   See also Macchia v. Russo, supra, 67 N.Y.2d at 595, 505 N.Y.S.2d 591, 496 N.E.2d 680 (“Notice received by means other than those authorized by statute does not bring a defendant within the jurisdiction of the court”);  Miron Lumber Co. v. Phylco Realty Development Co., supra, 151 Misc.2d at 142, 572 N.Y.S.2d 992 (“service of process which does not strictly comply with specifically authorized statutory methods will not be upheld even if defendant subsequently receives the improperly served process and thereby learns that an action is pending against it”).

C.P.L.R. § 312-a(d) requires a defendant to return, within thirty days, not an answer to the complaint, but an acknowledgment form in which defendant expressly acknowledges, under oath, that he has “received a summons and complaint.”   Significantly, the answer served in this case, far from acknowledging proper receipt of the summons and complaint, affirmatively alleges the precise opposite-that defendant was not properly served.   Further, even if an answer may be accepted in lieu of an acknowledgment form in a proper case, the answer served here would not qualify since it was delivered to plaintiff well after the statutory thirty days had expired.

Under these circumstances, the answer served in this case cannot be equated in any way with the acknowledgment-of-receipt form prescribed by C.P.L.R. § 312-a(d), sufficient to confer personal jurisdiction over defendant.   Inasmuch as defendant failed to return the acknowledgment form and plaintiff concededly failed to effect service by any other means, defendant was not properly served under Article 3 of the C.P.L.R.

 Contrary to plaintiff's claims, defendant did not submit to the personal jurisdiction of the Court, or otherwise waive his challenge thereto, by appearing and answering the complaint.   The waiver-by-appearance statute, C.P.L.R. § 320(b), provides, in pertinent part, that “an appearance of the defendant is equivalent to personal service of the summons upon him, unless an objection to jurisdiction under paragraph eight of subdivision (a) of rule 3211 is asserted by motion or in the answer” (emphasis added).   Thus, “[w]hen the defendant appears but couples his appearance with an objection to jurisdiction over his person, he ․ insulates [himself] from a submission to personal jurisdiction.”   McLaughlin, Practice Commentaries, McKinney's Consolidated Laws of New York, Civil Practice Law and Rules (Book 7B), C320:4, at 493.

Here, defendant appeared in the action by serving his answer forty-six days after the mailing of the summons and complaint.   Because defendant “couple [d] his appearance with an objection to jurisdiction over his person” (McLaughlin, Practice Commentaries, C.P.L.R. C320:4, at 493), however, he has effectively preserved his right to challenge the in personam jurisdiction of the court.   Although plaintiff contends that the waiver exception in C.P.L.R. § 320 is inapplicable where service is attempted under C.P.L.R. § 312-a, plaintiff fails to set forth any reason at all for invalidating the waiver exception in Rule 320(b) when personal service by mail, as opposed to other methods of service, is used.

Nor can the Court conceive of any legitimate reason for invalidating the plain language of the waiver exception.   Indeed, when the Legislature adopted C.P.L.R. § 312-a in 1989 and amended it thereafter, the Legislature made corresponding amendments to various related statutory provisions to accommodate the new service-by-mail statute that was being enacted (see e.g. C.P.L.R. §§ 306[d];  New York City Civil Court Act §§ 403, 1908-a;  Uniform District Court Act §§ 403, 1908-a;  Uniform City Court Act §§ 403, 1908-a;  Uniform Justice Court Act §§ 403, 1908-a).   Yet, the Legislature did not amend the waiver exception provision in C.P.L.R. § 320(b).

The failure to amend Rule § 320(b), or otherwise statutorily carve out the exception to the exception which defendant espouses, evinces the Legislature's intent to leave that statutory provision intact.   The Court finds that C.P.L.R. § 320(b), which permits a defendant to answer a complaint while simultaneously raising a challenge to the court's jurisdiction, applies even when plaintiff attempts to serve by mail pursuant to C.P.L.R. § 312-a.   Thus, plaintiff's claim that defendant waived his jurisdictional challenge by voluntarily appearing in the action is meritless.   Defendant's objection to personal jurisdiction is effectively preserved by virtue of C.P.L.R. § 320(b).

 Nor did defendant submit to the court's jurisdiction by demanding a bill of particulars, Ortiz v. Booth Memorial Medical Center, 94 A.D.2d 698, 699, 461 N.Y.S.2d 899 (2d Dept.1983), Al-Dohan v. Kouyoumjian, 93 A.D.2d 714, 716, 461 N.Y.S.2d 2 (1st Dept.1983), or by asserting a counterclaim in his answer, inasmuch as the counterclaim, as plaintiff seems to concede, was clearly “related” to the complaint in the underlying action.   Textile Technology Exchange, Inc. v. Davis, 81 N.Y.2d 56, 59, 595 N.Y.S.2d 729, 611 N.E.2d 768 (1993).

 Finally, notwithstanding plaintiff's contentions to the contrary, defendant pleaded his affirmative jurisdictional defense with sufficient particularity by alleging that “[t]he Court lacks jurisdiction over the person of the defendant because service of the summons & complaint was not in full compliance with Section 308 of the C.P.L.R.” Defendant was not required, as a prerequisite to preserving his jurisdictional objection, to cite specifically to C.P.L.R. § 312-a in his affirmative defense since plaintiff, having failed to receive the acknowledgment-of-receipt form, was already placed “on notice that [its] attempted mail service has aborted.”   McLaughlin, Practice Commentaries, McKinney's Consolidated Laws of New York, Civil Practice Law and Rules (Book 7B), C312-a:4, at 424.

Further, defendant's citation to C.P.L.R. § 308, entitled “Personal Service Upon a Natural Person,” was perfectly proper since that is the method of service to which plaintiff was required to “resort” when its service attempt under § 312-a failed.   Notably, plaintiff could not have resorted to the remaining methods of service since they simply do not apply to the defendant in this case.   See generally C.P.L.R. § 307 (“Personal Service Upon the State”);  C.P.L.R. § 309 (“Personal Service Upon an Infant, Incompetent or Conservatee”);  C.P.L.R. § 310 (“Personal Service Upon a Partnership”);  C.P.L.R. § 311 (“Personal Service Upon a Corporation or Governmental Subdivision”);  C.P.L.R. § 312 (“Personal Service upon a Court, Board or Commission”).

Finally, plaintiff's reliance upon Walden v. Thagard, 67 A.D.2d 973, 974, 413 N.Y.S.2d 451 (2d Dept.1979) is misplaced since the pleadings regarding the jurisdictional objection in Walden, unlike the pleadings here, clearly “did not fairly apprise plaintiff of the [jurisdictional] objections [being] made” and thus would have likely “take[n] the adverse party by surprise.”   The plaintiff here does not even claim that it was taken by surprise, or that it was otherwise misled, by the import of defendant's plain jurisdictional challenge.   In short, defendant's affirmative defense was sufficiently pleaded.

Conclusion

Inasmuch as defendant failed to return the acknowledgment form and plaintiff concededly failed to effect service by any other means, defendant was not properly served under Article 3 of the C.P.L.R. Accordingly, the Court lacks in personam jurisdiction over the defendant.   Defendant's motion to dismiss the complaint is granted pursuant to C.P.L.R. § 3211(a)(8), and plaintiff's cross-motion to strike the affirmative defense is denied.

ROLANDO T. ACOSTA, J.