[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] EILEEN N. NADELSON, J.

The instant commercial holdover proceeding was instituted by Petitioner against persons who occupied its premises without a lease and conducted church services at said location. The named Respondents are a church, the church's minister, a fictitious corporation, and fictitious individuals. Allegedly, Respondents took possession of the premises without the knowledge or consent of Petitioner. When Petitioner became aware of Respondents' presence, it attempted to assist Respondents to relocate. When Petitioner and Respondents could not find a mutually agreeable alternate location, this instant proceeding was commenced.

The current action began with the service of a "Thirty Day Notice of Termination of License, Tenancy at Will, and/or Tenancy at Sufferance," followed by a Notice of Petition and Petition. Respondents have challenged the service of both documents, that challenge forming the basis of this decision.

At the traverse hearing, the licensed process server testified that he went to the church premises in question and waited until the gentleman who was leading the service left the pulpit. He approached that person and addressed him as "Reverend Montauban," the minister named as a Respondent, and the gentleman replied "yes." [Transcript p. 6, April 15, 2004] In later testimony the process server repeated that this person identified himself as the Reverend Montauban [Transcript p. 34, April 15, 2004, p. 21, April 16, 2004]. The person was described as being a six-foot tall African-American.

The man refused to take the legal documents, and so the process server left them at the person's feet. [Transcript p. 11, April 15, 2004] The process server then mailed copies of the Thirty Day Notice to all of the named respondents except Reverend Montauban to an address he had been given which turned out to be Reverend Montauban's residence. No mailing was made directly to Reverend Montauban because the process server believed Reverend Montauban had been personally served.

After the thirty days had elapsed, the same process server returned to the premises to serve the Notice of Petition and Petition. On this occasion the process server testified that he was given information to believe that the person who he allegedly served with the Thirty Day Notice was not Reverend Montauban. It was indicated to the process server that the Reverend Montauban was a five-foot seven inch African American.

While waiting for the church service to conclude, a van arrived and a man fitting the description of the five-foot seven African American emerged. The process server approached this person and asked him if he were the Reverend Montauban, and the man stated that he was not. [Transcript p. 36, 37, April 15, 2004, p. 21, 23, April 16, 2004]

At the conclusion of the church service the process server went over to the person whom he allegedly served with the Thirty Day Notice. When he was next to that person the shorter person grabbed the papers out of the process server's hands, screamed at him to leave his church, and threw the Notice of Petition and Petition into the street. [Transcript p. 38, April 15, 2004].

Reverend Montauban was identified in court by the process server as the five-foot seven inch gentleman who said he was not Reverend Montauban at the church premises. Reverend Montauban, however, testified that he had never seen the process server before. Additionally, Reverend Montauban stated that the six-foot tall gentleman who was conducting the services is a deacon of the church who receives no compensation for his services.

The unique and challenging questions now presented to the court for determination are:

1. Whether a deacon who volunteers his services to a church may be deemed to be employed on the church premises for the purpose of the service of a predicate notice pursuant to section 735 of RPAPL?

2. Whether a predicate notice may be deemed personally served if the person served misrepresents himself as the named respondent so as to mislead the process server?

2. Whether service of a notice of petition and petition has been properly made when the person attempting to be served denies his identity, refuses to take the legal documents, but then grabs the documents and throws them away?

The service of papers in a summary proceeding are governed by the provisions of section 735(1) of RPAPL. That provision states, in pertinent part:

Service of the notice of petition and petition shall be made by personally delivering them to the respondent; or by delivering to and leaving personally with a person of suitable age and discretion who resides or is employed at the property sought to be recovered, a copy of the notice of petition and petition, if upon reasonable application admittance can be obtained and such person found who will receive it. . . .

The same service requirements that apply to the notice of petition and petition apply to a notice to quit as well. Lorenzo v. Rivera, 132 Misc. 2d 591, 504 N.Y.S. 2d 955 (Kings 1986).

In the instant case two distinct questions must be answered to determine whether Respondents were properly served with the predicate notice of termination: one, is the deacon considered to be employed at the premises; and two, whether the deacon may be considered a person of suitable age and discretion?

Pursuant to the general provisions of the Religious Corporations Law, a church's pastor and its Board of Deacons are deemed to be ecclesiastical officers of the church, Hayes v. Board of Trustees of Holy Trinity Baptist Church of Amityville, 225 N.Y. 2d 316 (1962). This status applies regardless of any compensation a deacon may or may not receive. Also, at least one court has found a deacon to be an agent of a corporate church. Baptist Temple Church, Inc. of New York v. Mann, 194 Misc. 2d 498, 755 N.Y.S. 2d 780 (New York County 2002).

Ballantine's Law Dictionary defines the term "employed" as "being engaged in rendering services. . . ." Once again, compensation is not considered to be the sine qua non of the concept of employment. In many instances and under many circumstances the courts of this State have found persons who receive no compensation to be "employed" for various legal purposes, several examples of which follow.

In Rhatigan v. The Brooklyn Union Gas Company, 136 A.D. 2d 727, 121 N.Y.S. 2d 481 (2nd Dept. 1910), in applying the doctrine of respondeat superior, the court stated that "it is not necessary that he [the workman] should have been under any general employment of the defendant, nor that he should be under any engagement of service to him, or entitled to receive compensation from him directly. It is enough that, at the time of the accident, he was in charge of the defendant's property by his assent and authority, and engaged in his business."

In a similar application of the concept of authority and control over the services performed, the Workers' Compensation Board has found that volunteers who are injured in the course of their voluntary employment are entitled to receive workers' compensation benefits. In the Matter of the Claim of Gast, 259 A.D. 2d 862, 687 N.Y.S. 2d 450 (3rd Dept. 1999). Once again, the element of compensation for services rendered was not the ultimate test of being considered employed by or at a particular place.

In another case differentiating between the legal status of an independent contractor vis a vis an employee for the purposes of determining unemployment benefits, the compensation paid was not even considered as a determining factor. Rather, the court held that the legal test for determining employment is whether the alleged employer exerted control over important aspects of the services performed, whether the hours worked are for the most part regularly scheduled, and whether the services are rendered at the alleged employer's premises with the use of that person's equipment and facilities. If there is a sufficient evidentiary basis to conclude that such control and authority are exerted, the service provider may be considered an employee. In the Matter of Concourse Ophthalmology Associates, P.C. v. Roberts, 60 N.Y. 2d 734, 469 N.Y.S. 2d 78 (1983)

In applying these standards to the instant situation, the court must conclude that the deacon was "employed at the property sought to be recovered." The deacon is an ecclesiastical officer of the Respondent church, his services were regularly scheduled by the church, he used the church's facilities and equipment to further the church's business, and his services were authorized by the church. Consequently, the first question regarding whether the deacon is employed at the premises must be answered in the affirmative.

A recent decision of the supreme court of Kings county, Reeves v. Cathedral of Deliverance, N.Y.L.J. p. 19, col. 3 (April 27, 2004), found that a church was not responsible for the acts of a volunteer evangelist who conducted a prayer service at the church's facility. However, the case at bar is distinguishable from that situation. In Reeves the evangelist had no permanent connection with the defendant church, such as the deacon has with Respondent church, and the evidence at trial indicated that the evangelist was not under the control or supervision of the defendant. Conversely, the deacon in the instant matter is an officer of the Respondent and regularly conducts Respondent's religious services at the time, place and manner as established by Respondent church.

The second question posited by the facts of the service of the predicate notice, whether the deacon is a person of suitable age and discretion, must also be answered in the affirmative.

The primary consideration in determining the validity of service pursuant to RPAPL section 735(1) is whether the manner of service is calculated to adequately and fairly apprise the respondent of the impending lawsuit. Using this guideline, the courts have upheld service to persons not even employed by the respondent in question provided that the employee so served is likely to notify and pass on the papers to the appropriate person. City of New York v. Wall Street Raquet Club, Inc., 136 Misc. 2d 405, 518 N.Y.S. 2d 737 (New York County 1987).

In ascertaining the suitability of the person served, the courts look to the nature of the employee's job and the degree of responsibility that job entails. Top Value Homes, Inc. v. Continental Petroleum Corp., 2004 N.Y. Slip Op. 50169U, 2004 N.Y. Misc. Lexis 242. The status of the employee in the corporate hierarchy is ordinarily not determinative of whether the service is valid. Rather, the courts generally under the rubric of determining whether the employee is of suitable age and discretion will consider the circumstances of the particular service, including the nature of the employee's position to the corporation, or whether the relationship of the employee to the corporation is such that the employee will be likely to deliver the process to the named respondent. Manhattan Embassy Co. v. Embassy Parking Corp., 164 Misc. 2d 977, 627 N.Y.S. 2d 245 (New York County 1995)

Based on the foregoing, this court can only conclude that the deacon is a person of suitable age and discretion. Not only was he performing significant and responsible services for Respondent church as an official of the church, but he was also the only church representative at the location.

The fact that the deacon failed to take physical possession of the predicate notice is irrelevant. The courts have long recognized that there is a duty to accept service of process, Gumperz v. Hofmann, 245 A.D. 622, 283 N.Y.S. 823 (1st Dept. 1935), and where a party resists service, it suffices to leave the process in his general vicinity. Haak v. Town of Wheatland, 86 A.D. 2d 961, 448 N.Y.S. 2d 305 (4th Dept. 1982).

The court finds that Respondent church, fictitious corporation and fictitious individuals were properly served with the predicate notice when the deacon was served and copies mailed to them.

However, the court cannot conclude that Reverend Montauban was properly served with the predicate notice.

Section 735(1) of RPAPL requires that service be made upon a person of suitable age and discretion who is employed at the premises, but further that such service be followed by a mailing to the respondent of the documents served within one day of the substituted service.

The evidence adduced at trial indicated that, whereas the process server followed the service on the deacon with a mailing to the other named respondents, he failed to make such a mailing to Reverend Montauban. [Transcript p. 12-13, April 15, 2004]. Petitioner has argued that, because of the deacon's subterfuge in stating that he was the Reverend, the Reverend should be deemed personally served, thereby negating the necessity of a mailing. This the court cannot do.

There is only one recognized exception to the strict requirement of delivery to the person to be served. This exception applies when the person to be served is himself clearly attempting to resist or evade service, which may occur by misrepresentations as to identity or some affirmative act which evidences a deliberate attempt to resist service. Professional Billing Resources, Inc. v. Haddad, 183 Misc. 2d 829, 705 N.Y.S. 2d 204 (New York County 2000). However, in the instant case it was not Reverend Montauban who misrepresented his identity, but the deacon. At the time of service of the predicate notice, Reverend Montauban was not at the premises nor in the vicinity of the deacon and the process server. Consequently, service on the deacon could only qualify as substituted service on Reverend Montauban, which requires a follow-up mailing.

Because service on Reverend Montauban of the predicate notice was never properly effectuated, the proceeding must be dismissed as against him.

The final issue to be resolved by the court concerns the service of the notice of petition and petition on the remaining Respondents. As previously stated, it is well settled that a defendant has a duty to accept service of process, and one who resists may be considered validly served if process is subsequently left in his or her general vicinity. Coyne v. Besser, 154 A.D. 2d 503, 546 N.Y.S. 2d 129 (2nd Dept. 1989). Also, substitute service may be made on a party who resists or refuses to submit to service. Manhattan Embassy Co. v. Embassy Parking Corp., id.

In the instant case, credible testimony presented at the traverse hearing indicates that Reverend Montauban attempted to evade service by misrepresenting himself to the process server, and subsequently snatched the notice of petition and petition from the process server's hands. These documents were then tossed into the street.

There is no question that Reverend Montauban is employed at the premises sought to be recovered. At the traverse hearing he testified that he is Respondent church's minister and is paid for his services by Respondent church. [Transcript p. 63 et seq. April 16, 2004] Based on the above cited case law, it is clear that service of the notice of petition and petition were served on Reverend Montauban, a person of suitable age and discretion who, as a minister of Respondent church, is likely to see that the documents are passed on to the appropriate parties. Further, the process server then mailed copies of the notice of petition and petition to the Respondent church, fictitious corporation and fictitious individuals. Therefore, the court concludes that these four respondents were properly served.

This summary proceeding may continue even though Reverend Montauban, a named respondent, has been dismissed from this current proceeding for lack of proper service. Reverend Montauban is not a necessary party as defined in section 1001 of the CPLR.

Section 1001 of the CPLR has been held to apply to summary proceedings as well as regular civil actions. Panzica v. Crane, 3 Misc. 2d 731, 157 N.Y.S. 2d 254 (Queens County 1958). However, courts have held that subtenants of property in a commercial holdover proceeding are not necessary parties, and that summary proceedings may proceed against commercial tenants even after a subtenant has been dismissed from the action for improper service. Triborough Bridge and Tunnel Authority v. Wimpfheimer, 165 Misc. 2d 584, 633 N.Y.S. 2d 695 (New York County 1995). Further, since Reverend Montauban is an employee of Respondent church and is only on the premises to further the church's business, his rights, if any, are subordinate to the those of the church. Consequently, his participation as a party to the action is not necessary to render an effective judgment. CPLR section 1001(b)(5); see generally Commissioners of State Ins. Fund v. Schell, 23 A.D. 2d 556, 256 N.Y.S. 2d 638 (1st Dept. 1965).

This constitutes the opinion and order of the court.