Commercial Division Blog

Posted: July 2, 2020 / Categories Commercial, Service of Process

Mental Illness Does Not Make a Person Not of Suitable Discretion to Receive Service

On June 15, 2020, Justice Cohen of the New York County Commercial Division issued a decision in Patel v. Patel, 2020 NY Slip Op. 31864(U), rejecting the argument that mental illness rendered a person not of suitable discretion to receive service, explaining:

Defendant contends that the Court lacks personal jurisdiction over Defendant because the individual to whom the summons and complaint were allegedly delivered was not a person of suitable age and discretion within the meaning of CPLR 308(2). Specifically, in an accompanying affidavit, Defendant avers that the Summons and Complaint was served on his daughter, who was not a person of suitable age and discretion under the service statute because she was suffering from a number of mental illnesses and did not show the papers to Defendant. These circumstances were previously brought to the Court's attention when Plaintiff sought to enter a default judgment against Defendant, and Defendant moved to vacate. The default judgment motion was ultimately withdrawn (see NYSCEF 14, 20).

Here, Defendant has not made a sufficient showing to warrant dismissal based on lack of personal jurisdiction over him. Indeed, Defendant's counsel fails to cite any legal authority - other than the text of CPLR 308(2) - in support of this argument. There is also no factual allegation that the process server should have known that service upon Defendant's family member, at Defendant's home, was not reasonably likely to convey the Summons and Complaint to Defendant.

(Internal quotations and citations omitted).

The rules regarding how you start a lawsuit and bring the defendants into it can sometimes be esoteric. Failing properly to serve a defendant with the papers initiating an action can result in its dismissal, regardless of whether the defendant had actual notice of the lawsuit. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have a question regarding the proper way to serve a defendant, bringing them into a lawsuit.