HOW TO SERVE LEGAL PAPERS IN A GATED COMMUNITY

In the United States, civil process servers ensure that everyone gets their due process rights. The problems that process servers encounter along the road complicate things, and getting the job done is made much more difficult. Gated communities have been shown to provide a physical barrier for process servers who are attempting to execute their duties. Some defendants in the justice system know that their whereabouts are safe inside the iron gates of their gated communities, and so they avoid going to court altogether by evading service. Even though gated neighborhoods create difficulties for process servers, the precedent has seen some settlement to the issue. Some states have introduced legislation to aid the service of individuals, while other states are still developing similar regulations.

CURRENT STATE OF LEGISLATION

Service on an apartment building doorman varies depending upon jurisdiction as well. In California, a court held that the doorman must be ‘considered a competent member of the household‘ and apparently in charge. The court held that since the doorman is authorized to control access to the building to both residents and visitors, the court assumed a valid relationship between the parties who rendered service of process upon the doorman legal. Similarly, while defendants may control whether doormen may accept mail or packages, they may not negate the legal service of process.

Since a gated community has guards stationed outside the gates, it is analogical to presume that service of process levied upon a doorman of an apartment building can be linked to service of process intended to a gated community.

California, Florida, Illinois, Washington are major states that offer limited exemptions or affirmative defenses against trespassing. Essentially, in areas that are access-controlled, process servers in these jurisdictions are permitted to enter private property for a reasonable period of time to attempt service. Further, a doorman is required to grant access to a server, although there is nothing in the law that forbids forewarning the resident of the impending service. If access is refused, the doorman of the apartment association itself risks incurring liability. In California, Registered Process Servers are granted a limited exemption against trespassing in gated communities. This allows servers to enter private property for a reasonable period of time to attempt service of process. Gated communities which are ‘…staffed by a security guard, or where access is controlled, must allow a Registered Process Server to enter for service of process upon presenting valid identification, and indicating to which address the process server is going.’

WHEN CAN A DOORMAN OR GUARD BE SERVED

It is important to refer to the case of DuPont et al. v. Chen, in which the court set forth specific criteria as to when service on a doorman is legal if visitors are not permitted entry. The court stated that, in order to determine the efficacy of service in this situation, it was necessary to look at whether the server determined with the doorman that the defendant actually lives in the building, whether the server attempted to leave notes for the defendant to contact them, and whether the doorman notified the server that the defendant picked up these notes. If these conditions are satisfied — thereinafter demonstrating that the server made good-faith efforts to determine that the defendant resided in the building and enlisted the doorman’s help in contacting the defendant — then leaving the papers with the doorman was held to be valid. 

According to the court of appeals in DuPont v. Chen, a ‘doorman’ is expected to ‘screen calls, announce guests, and receive deliveries for tenants.’  The doormen of an apartment building are often successful in blocking the physical movement of process servers at the lobby floor level while they are making their way to provide service on intended recipients, usually situated on the levels above the lobby. Too many apartments, the doorman will be stationed inside the front door, and every person who arrives will have to go through them to enter. 

SERVICE OF PROCESS IN NEW YORK

While serving a ‘natural person’ in most civil cases, a process server will physically give them their accompanying legal papers, to GAanother individual residing in the defendant’s regular home, and then attach or affix them to the door. Furthermore, the server follows up by providing a mailing copy.   When serving legal papers, the server is physically handing them to the receiver and therefore complying with the CPLR.

Under CPLR 308, if a process server serves a doorman in the lobby and not a particular apartment unit, they are rendering service on behalf of the receiver. As a result, this rule has not explicitly stipulated that a server is forbidden from leaving documents for doormen who are positioned at the lobby level, like how a process server at a reception desk might hand over legal papers to a business associate. This is where CPLR 308(2) comes in. 

Process servers in New York are only allowed to leave papers with a doorman in a few circumstances. While this fact should be recognized for its self-evident qualities, service on a doorman at the lobby level is referred to be bad service in New York courts. Substituted service is one of the ways to deliver legal papers that start a case. The papers are left with someone else to give to the defendant or respondent and copies are mailed. 

Substituted service can only be used when personal delivery is tried and the person is not there. Inviting a doorman to serve the defendant does not always comprise good service since there is no immediate relationship with the defendant, which cannot encompass ‘fair notice.’ When there is enough time for a defendant to prepare for a lawsuit, fair notice requirements are fulfilled. If the defendant has no evidence that they know about an ongoing action against them, the court may enter a default judgment against them. 

ACCEPTING SUBSTITUTE SERVICE ON THE DOORMAN

New York Courts categorizes providing a doorman with court papers as appropriate service only if there are unique circumstances during said service. CPLR 308(2) permits service by doorman only in two situations: [A.] when they have  ‘reconstructed’ the ‘Dwelling Place or Usual Place of Abode’ (as specified by CPLR 308(2), or [B.] when the doorman has spoken with the recipients directly about service.

Reconstructing the dwelling place simply would refer to representative circumstance essentially explaining why a process server would leave documents with a doorman. Essentially, rather than classifying service on a doorman as bad service, the lobby is reconfigured to serve as the abode of the individual. In a precedent caselaw concerning the same, the judge made the verdict that because the ‘doorman refused entry’ past the lobby floor to the process server, the court allowed the hotel lobby to qualify as the ‘dwelling place or usual place of abode’ for the recipient.  As a result, the doorman hindered the advance of the process server, who was seeking to serve the defendants and prevented the server from proceeding to the real home of the defendants. Therefore, giving service to the doorman was appropriate. For a gated community, the option of personal communication with recipients is more relevant. 

In the State of New York, a process server cannot serve a doorman at the lobby floor (instead of the actual apartment) until their progress has been officially ‘arrested’ or halted by a doorman. This means that a process server must do three things for proper service to be effected, being [A.] attempt to provide service but be specifically stopped by the doorman after making an unimpeded attempt to gain both entrances into the building and then access to the specific unit or apartment within the building to serve documents upon the intended party, [B.] be explicitly denied access to the apartment by the doorman and [C.] upon service to the doorman, the server must mail copies of said documents to all involved parties. 

ISSUES FACED BY GATED COMMUNITIES

A major difficulty encountered by managers of gated complexes is determining whether to allow a process server to enter the community’s boundaries.  Before commencing an adversarial process, proper service of papers is imperative. Proper service of process will establish personal jurisdiction of the court over the person served. If the defendant ignores said process, then the court or administrative body may find the defendant in default and award relief to the plaintiff.  Consequently, it is important that the defendant get adequate notice of the allegations that are being made against them. In order to protect its reputation, a Community Association cannot look the other way when issued with a legal document and left at the gate. Often, servers who are not allowed past the gate due to active guards who refuse access can ensure service is completed by leaving the papers at the gate, which can negatively impact a defendant. 

This is not just a problem for the individual being served. For residents who reply to Summons and complaints promptly, the possibility of a Default Judgment for that residence is brought sometimes within twenty days of the first filing. Failure of an Association to have a policy in place may result in liability and the chance of lawsuits. homeowners have tried to dodge processes in order to avoid adversarial procedures such as lawsuits since the beginning of guard-gated communities. 

IS THE GUARD REQUIRED TO ALLOW A PROCESS SERVER INTO THE COMMUNITY

It is in the interest of the individual to identify whether the  Community Association has a policy in place regarding process servers.   This is important because an individual party to be served is unavailable for personal service, many jurisdictions allow for substituted service. Substituted service allows the process server to leave service documents with another responsible individual, called a person of suitable age and discretion, such as a cohabiting adult. 

In the absence of such policy, the Association can very easily be liable for any missed process service by the individual and can be open to lawsuits stemming from their negligence. Consequently, a Community Association to protect itself is to have a policy in place, provide notice to individuals, and strictly adhere to that policy.  From a legal standpoint, the most important part is that there is a policy in place and that the homeowners are notified. Otherwise, so long as it is reasonable, it is up to the Association to determine what policy to adopt. 

An Association can choose from a myriad of policies including [A.] Forwarding Policy, [B.] Notice Only Policy, [C.] No Assistance Policy, [D.] Entrance Policy, [E.] Escorting Policy. With a forwarding policy, the homeowner is free to let the process server enter the neighborhood, but agrees to send any papers delivered to the guard gate. Although some associations have opted out of sending legal, time-sensitive papers to residents, there are still others that are more than willing to take on those responsibilities, risks, and additional postal expenses. Although the liability is reduced by appropriate record-keeping and adequate notification, the Association will still have the obligation and pay postal costs. 

More typical is having an entry policy, where a guard will let any process server who presents identity and paperwork access the organization, as long as the process server has a proper purpose.  Most areas also include an escort policy, although this is highly time-intensive. Anyone who attempts to provide service at the gate is escorted to the residence, and the process server cannot simply leave a copy of the document at the gate if the homeowner is not home.  

Process servers are banned from trespassing on property in almost every state. Even the smallest intrusions are seen as illegitimate, unlawful, and may lead to sanctions for perpetrators. Process servers have found that gated communities and apartment complexes make it difficult for them to do their jobs. However, most areas are obliged to grant entry to them. However, this fact may be overcome where the process server is in the direct employment of a law enforcement agency, such as the U.S. Marshals Service, a county sheriff’s department, or other law enforcement agency having a responsibility to serve documents.

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Sources

1. Bein v. Brechtel-Jochim Group, Inc., 6 Cal. App.4th 1387 (1992

2. Bossuk v. Steinberg, 88 A.D.2d 358 (1982),

3. In Washington, ‘Registered Process Servers’ are granted a limited exemption or affirmative defense against trespassing:

— RCW 9A.52.090 (4)

4. California Code, Code of Civil Procedure – CCP § 415.21

5. DuPont et al. v. Chen, 41 N.Y.2d 794 (1977),

In this case, copies of the summons and complaint were delivered to the Sheriff of the City of New York for personal service on each of the defendants, husband, and wife. On Tuesday, September 24, 1974, a Deputy Sheriff went to the apartment house at 220 West 93rd Street, Manhattan, in which defendants resided. It appears that he was permitted entry and made his way to the defendants’ apartment, No. 4A. On receiving no response, he left a card inviting defendants to communicate with him. On Thursday, September 26, he returned, again was permitted entry and on receiving no response left his card under the door of the defendants’ apartment for the second time. When he went back to the apartment house on Monday, September 30, he was greeted by the doorman. He identified himself and inquired about defendants. After informing the Deputy Sheriff that the defendant had received his message, the doorman would not permit him to go up to the defendants’ apartment. *796 The deputy then handed the doorman two copies of the summons and complaint, one set for each defendant. On returning to his office the deputy also mailed copies to each defendant at 220 West 93rd Street.

6. Section 308 of the Civil Practice Law and Rules (CPLR)

7. New York Consolidated Laws, Civil Practice Law, and Rules – CVP § 308. Personal service upon a natural person

Personal service upon a natural person shall be made by any of the following methods:

{1.) by delivering the summons within the state to the person to be served

8. New York Consolidated Laws, Civil Practice Law, and Rules – CVP § 308. Personal service upon a natural person

2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first-class mail to the person to be served at his or her actual place of business in an envelope bearing the legend ‘personal and confidential and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other;  proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later;  service shall be complete ten days after such filing;  proof of service shall identify such person of suitable age and discretion and state the date, time and place of service

9. New York State Unified Court System. ‘Substituted Service.’ Substituted Service | NY CourtHelp, www.nycourts.gov/courthelp/goingtocourt/serviceSubstituted.shtml. 

10. ROSENBERG v. HADDAD 208 A.D.2d 468 (1994) as referenced in BMT Associates LLC v  Abdul Wajid Hakim.

11. Powell v Fink 2013 NY Slip Op 50684(U) 

12. Leaving process in the recipient’s general vicinity is the functional equivalent of delivery if the recipient resists the service, for example, by refusing to open the door after the process server has announced his or her mission. Bossuk v. Steinberg, 58 NY2d 916, 460 N.Y.S.2d 509, 447 N.E.2d 56 (1983). See also, Duffy v. St. Vincent’s Hosp., 198 AD2d 31, 603 N.Y.S.2d 47 (1st Dept 1993) where a delivery component of CPLR 308(2) was satisfied where papers were left on the nearby lawn after security guard refused to permit entry to the residential community or to accept papers at gate

13. Martin, Antoinette. ‘The ‘Security’ of a Gated Community.’ The New York Times, The New York Times, 11 June 2006, www.nytimes.com/2006/06/11/realestate/11njzo.html. 

14. Metta, John. ‘Residents of Gated Communities Are Unfairly Protected from Service of Process.’ New Jersey Law Journal, 24 June 2021, www.law.com/njlawjournal/2021/06/24/residents-of-gated-communities-are-unfairly-protected-from-service-of-process/.