Commencement of Actions and Service of Process Flashcards
Summons Requirements
(N)ot (V)ery (D)etailed (I)nformation
Names of the Party’s
Venue - basis of the choice of venue
Date of Filing
Index number
To commence an action in NY State you must
File either (1) summons and complaint or (2) summons and notice
with the county clerk
Complaint or Notice
Complaint must be filed with court clerk with the summons
Party may file summons and notice with court in the absence of a complaint.
Immediate filing
Where court finds circumstances prevent immediate filing the court can sign an order to commence the action
Mistakes or Defects
The court is specifically authorized to correct any mistakes or defects in filing on any terms as are just, or disregard them if NO substantial right of a party is prejudiced
Service of Process - Generally
both the service and the process must be sufficient.
The process is deemed sufficient when summons and complaint or notice is correct.
Timing of Service
Service of S&C must be made w/i 120 days of filing.
Proof must be filed with the court.
Defects of service affect PJ, not SMJ
failure to serve w/i required period results in dismissal when person served objects in a timely fashion.
Otherwise objection is deemed waived.
Timing of Service where Statute of Limitations is 4 months or less
Filing deadline is shortened and service must occur within 15 days of the expiration of the statute
When service may be made
No sundays without showing of irreparable injury
No saturday service if the person serving KNOWS the person being served observes the Sabbath on saturday, even if service is made outside the state.
Service on Holidays is allowed.
Who may make the Service
over 18
not a party
Proof of Service
- Who was served
- What was served
- Date and time of service
- Who did the serving
“In Hand” Service
Nearly always sufficient
Hiding papers inside something renders service ineffective.
need not announce it is a service of summons or complaint.
may leave papers near individual or on floor behind him and walk away.
Luring an individual into the state for service
individual lured to state by fraud to effectuate service is invalid.
service effectuated when individual is in state voluntarily for legal proceedings ‘in hand’ service cannot be the sole basis for personal jurisdiction.
Delivery and Mailing of Summons
complaint is delivered to person of suitable age and discretion
at the actual place of business, dwelling place, or abode,
and mailing a copy of the summons by first class mail to either D’s last known residence or the individuals actual place of business within 21 days.
Affixing and Mailing
After other means of service has been tried with due diligence and failed
A copy of summons must be affixed to the door of the individuals actual place of business, dwelling, or usual place of abode,
and a copy is mailed by first class mail to either the individuals last known residence or their actual place of business.
Infants and Incompetents
personal service may be effectuated on incompetent personally
must also be effectuated on a parent, guardian, adult spouse, custodian, or conservator.
Service on Agents
Delivery may be made on an agent so long as agent is designated under CPLR 318
Personal Service on a Business Entity
Sufficient Individuals for In Hand Service
Partner,
managing general partner of a partnership
Managing, General Agent, General Partner for a Limited Partnership
Any member or manager of a LLC
Any officer, director, managing or general agent,
cashier, assistant cashier, or any other agent authorized by a foreign or domestic corporation.
Delivery and Mailing Service on a Business Entity
Service is effectuated by delivering the summons to the business entities office,
to the person in charge of the office,
or any employee authorized to receive service and
mailing a copy of the summons and complaint by first class mail to the entities office
Delivery of Service to Secretary of State
Secretary of State must be served with 2 copies
Secretary of States office mails one to the corporation at address on file.
cannot get default judgement based on this service alone
unless the summons and complaint is mailed to corporations last known address.
Service by Mailing
only used when D will not contest service.
Copy of summons and complaint is mailed to individual by regular first class mail,
return receipt requested.
Service by Publication
Court may authorize
NO other method of service can be achieved.
Must publish:
1. Summons and notice
2. statement of the nature of the action and relief sought; and
3. Sum of money requested in the entry of a default judgement
Personal Service Outside of NY State
Person domiciled in NY, or subject to general jurisdiction, may be served in any manner appropriate for service in the state.
Person not subject to NY personal jurisdiction may be served in the same manner as in-state service but ONLY if the suit:
- Is a matrimonial action
- involves an interest in real property within NY; or
- involves the real or personal property that has been attached for judgement.
Defense Against Default Judgements
Individual who FTA after service may defend the action within One Year after he learns of the judgement.
May not defend actions where date of entry of judgement was more than 5 years prior
Amendment to a summons
At Any time the court will allow summons to be amended if
A substantial right of the defending party is not prejudiced.
amend as of right within 20 days after the pleading is served
or 20 days after responsive pleading is served.
Supplemental Summons - Adding Parties
Within 20 days of the service of an answer, P can join additional parties as of right.
After that court permission or agreement of all parties is required.
Where an individual has no reasonable basis to know he was being sued within the limitations period and all the technicalities of service rules are met, Will action against him stand?
No. Such an action is barred.
A complaint Must
Articulate the facts and claim for relief. Provides more detail than a notice.
A Notice Must
Give defendant notice of a claim and relief sought. Limited detail as compared with the complaint.
Circumstances where the court may extend time to serve
- Where there is good cause for the failure of service
2. In the interest of justice.
Proof of Service Requrements
Where it was served
Who was served
Date and time service was completed
Who did the serving
Person on whom service can be made who is not a party
Delivery may be made to a “person of suitable age and discretion”
At the individuals actual place of business or home
Delivery must be followed up by a mailing made within 20 days to the recipients last known address or actual place of business.
When can you use Nail and Mail
Once due diligence in other means of service has failed
Service may be effectuated by affixing papers to a business, dwelling, or home followed by a mailing within 20 days
When does NY have personal jurisdiction?
- individual is served in state
- Domiciliary - residence + intent to stay
- Consent
express - forum selection clause
implied - party’s failure to object.
When is a corporation ‘present’ in NY
authorized to do business in NY
NY corporation
‘doing business’ in NY
When is a company doing business in NY
has systematic and continuous contacts
Amendment - When can it take place
When will amendment of summons be permitted
Amendment of complaint will be allowed at the courts discretion
Amendment of a summons will be permitted if a substantial right of the parties is not affected.
Circumstances where NY courts will reach out and assert jurisdiction over out of state defendants
- Transactions of business within the state
- Contract to supply goods or services within state
- Commit an overt tortious act within the state
- Commits a tortious act outside the state that causes injury to persons or property located within the state.
- Owns, uses, possesses any real property within the state
- Non-Resident Matrimonial Action
Considerations whether a business transacts business within NY
D must have purposefully availed himself of the state
The act must be a transaction
Contracts within NY - arises out of a contract to supply goods w/i state
Commits a tort w/i NY
Owns or Uses real property within NY - Long arm statute will apply to cases arising out of ownership or use of that property.
Commits a tort outside of NY that injures within NY
Commission of a Tort Outside of NY that injures Within NY
- Tort is committed outside of the state
- Injury is within the state
a. Taking NY customers away
b. Causing a slowdown of business activity in NY
AND EITHER - A D that regularly does or solicits business or engages in a persistent course of conduct in NY
OR - Receives SUBSTANTIAL REVENUE FROM INTERSTATE COMMERCE and REASONABLY EXPECTS THE ACT TO HAVE CONSEQUENCES IN NY.
Necessary elements to have Personal Jurisdiction over Non-Resident Defendants in a Matrimonial or Family Court Proceeding
Party seeking support or other cause of action must be a resident or Domiciliary at the time of the demand.
One or more of the following must have occurred in NY
a. Ny must have been the place of Matrimonial domicile
b. D abandoned P in NY
c. the obligation for support accrued under NY law or a settlement agreement executed in NY.
Constitutional Considerations with Jurisdiction
- Has D sufficient contacts with the state to have availed themselves of the state?
- Exercise of jurisdiction will not offend the notions of fair play and substantial justice.
What must a Notice filed with the court state?
- Nature of the Action
- Relief Sought; and
- Sum of Money demanded
When is the Service of Process deemed proper?
When both the Service and Process is sufficient.
It will be deemed sufficient when the summons and complaint or notice is correct.
When is 120 day filing deadline shortened?
When the SOL is 4 months or less. In this case service must occur within 15 days of the expiration of the statute.
When filing proof of service, what must be specified?
- What was served
- Who was served
- Date and time
- Who did the service
Proof of Service where service is made by a sheriff or authorized public officer.
May be in the form of a certificate
Proof of Service where service is made by someone OTHER than a sheriff or authorized public officer.
proof must be in the form of a notarized affidavit.
What should both forms of proof of service (certificate or affidavit) contain
- Specify papers served
- Identify the person served or attempts at service
- Set forth the facts, showing the service was made by an authorized person in an authorized manner
Other proofs of service
letter admitting service by the person served.
Signed acknowledgement of receipt of service.
When can Nail and Mail be done?
Where another method of service has been tried with due diligence.
Once due diligence in other means of service fails, service may be effectuated by affixing papers to a business, dwelling, or home and mailing within 20 days to last known address or place of business.
The Complaint Must
articulate facts and claim for relief
Notice must
give D notice of claim and what you are asking for
