by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

TRESPASS; PRIVILEGED ENTRY; PROCESS SERVERS: A process server's entry onto the defendant's property to serve the defendant with papers after being told not to enter the property constitutes a trespass under New York law.

Butler v. Ratner, 662 N.Y.S.2d 69 (City Ct. 1997).

In this case, involving a domestic dispute, an ex-husband personally served the ex-wife with legal papers (an answer to the wife's lawsuit) despite being told by the new husband on repeated occasions not to enter the property. The court was faced with the conflicting provisions of law involving trespass and the CPLR. The CPLR states that service of papers the can be served "personally" upon a defendant. The court determined, however, that the law of trespass is clear that the essence of a trespass to real property is injury to the right of possession and any unauthorized entry regardless of force and even though no damage is done, constitutes a trespass. The court decided that the CPLR does not create a legal right to trespass on another's property.

The court found that there were no actual damages, however, and no malice in the trespass. Thus the plaintiff was limited to $1 in actual damages and no punitive damages reward.

Comment 1: The limitation on the relief here tends to make the case innocuous. But the technical existence of the remedy can give rise to potentially greater liability and injunctive relief in other cases. Process server business may really feel little deterrence from this case, but the next case that finds emotional distress damages and punitive damages based upon a trespass may get their attention.

Comment 2: The case has a certain charm for property mavens, in that it upholds the integrity of exclusive possession rights. The special facts tend to make the ruling justifiable. But what if all private property owners posted notices stating "no process serving allowed?" Would that make all process serving that did not occur on the public streets trespassory? Would this make evasion of process too simple?

The editor, not a litigator, assumes that physical serving of personal process does serve a practical purpose and that there is a public policy reason for using it. If that is so, then one would assume that if this case has any practical impact, we will then see a legislative or judicial "carve out" from the policy of this case to permit at least licensed process servers to function in quasi-public environments. And isn't a front porch such an environment?

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