Opinion
October 16, 1989
Appeal from the Supreme Court, Queens County (Santucci, J.).
Ordered that the appeal from the order dated March 29, 1988 is dismissed, as that order was superseded by the order dated June 30, 1988, made upon reargument; and it is further,
Ordered that the order dated June 30, 1988 is affirmed insofar as appealed from; and it is further,
Ordered that the respondent is awarded one bill of costs.
At a hearing held on December 12, 1986 the credible evidence adduced indicated that the plaintiffs' process server intended to serve the defendant Dr. Walter A. Besser with process as the latter walked through his waiting room to his inner office. The hearing court found, however, that although the process server called out the doctor's name, he did not inform the doctor or otherwise put the doctor on notice that he had process to serve, and the doctor's entering his inner office could not be said to constitute a deliberate course of evasion which would justify leaving the process in the doctor's general vicinity. It is well settled that a defendant has a duty to accept service of process (see, Bossuk v Steinberg, 58 N.Y.2d 916), and that one who resists such service may be considered validly served pursuant to CPLR 308 (1) if process is subsequently left in his or her general vicinity (see, Haak v Town of Wheatland, 86 A.D.2d 961, 962). It is imperative, however, that the defendant be made aware that he or she is in fact being served with process (see, Haak v Town of Wheatland, supra).
We see no basis to disturb the hearing court's finding that the doctor was not made aware that he was being served with process. Given that factual predicate, valid service was not effectuated by merely leaving the papers on a chair in the reception area of the doctor's office.
We have considered the plaintiffs' remaining contentions and find them to be without merit. Brown, J.P., Eiber, Kooper and Rosenblatt, JJ., concur.