Counsel also argued that he should be allowed to call the 13 year old so that he could [*2]conduct an examination in support of his claim that the 13 year old was a person of suitable age and discretion. The court noted that the 13 year old was not in the courtroom but probably in school as most 13 year olds are required to be under the laws of the State of New York.{**85 Misc 3d at 474}
After the testimony, counsel/process server argued that a 13 year old is a person of suitable age and discretion and that as such the service of the papers was proper. Counsel cited case law for the proposition that service of papers upon a 13 year old is proper as a matter of law.
Discussion and Conclusion:
The testimony established that there was little inquiry from the process server to discern and conclude that service upon a 13 year old would be proper as a person of suitable age and discretion. The very form relied upon by the process server, presented as evidence to the court, and used to enter the details about the location, the date by which to serve, and the persons to serve states that a responsible person to serve must be at minimum 16 years old.