Commencement Process Flashcards
COMMENCEMENT PROCEDURES
How is an action validlycommenced?
For a valid action, π must…
1) “file process” w/ the County Clerk (if filing action for Sup. Ct.) w/in the relevant SOL window
Process = summons and notice OR summons and complaint
2) pay a fee for the purchase of an index number
3) serve process on the ∆ w/in 120 days after filing w/ the county clerk
Note: Ct. has discretion to extend beyond 120 days if π makes an ex parte motion & makes a showing of good cause OR interest of justice (flexible)
Note: If ∆ wants to challenge timeliness, must raise untimely service in a Motion to Dismiss,but court can still grant π an extension & apply it retroactively
NOTE: if ∆ fails to raise the defense of untimely service, it is waived
Not: Ct. has discretion to permit the correction of a mistake in the filing procedure, PROVIDED:
(i) the ∆ suffers no prejudice;
(ii) the filing occurs w/in SOL; AND
(iii) the filing fee is paid
Summons & Complaint
OR
Summons & Notice (shorter than complaint)
What are the twoforms of process?
1) Summons & Complaint
Summons = notifies ∆ that he is being sued in a particular court
AND
Complaint = π’s pleading, which spells out elements of c/a
2) Summons & Notice
Summons = notifies ∆ that he is being sued in a particular court
AND
Notice → the notice is more brief than complaint but it must state…
(i) brief stmt of nature of action;
(ii) nature of relief sought (damages, equitable remedy); AND
(iii) if damages are sought, the amount of damages (UNLESS personal injuryOR wrongful death – then CANNOT state)
NOTE: The purpose of the notice is to get the action commenced easily w/o having to have a lot of paperwork. The notice MUST be followed up with a complaint
NOTE:if no complaint or notice attached (a “naked summons”), then defect in pjx & action can be dismissed on these grounds alone (PROVIDED the ∆ files a timely jx objection)
NOTE: If a personal injury or wrongful death action, neither the summons w/notice or w/complaint may specify the amount of damages being sought
REQUIREMENTS FOR SERVING PROCESS
What are the basic requirementsserving process?
1) Process server must be 18 or older
2) Process server cannot be a party to the action (attorney or a spouse of a party is allowed though)
3) Process may be served on any day EXCEPT Sunday,
Note: Saturday also not allowed provided ∆ is a Saturday Sabbath observer and ∆ knows it
Note: Process can be served on a holiday (provided it doesn’t fall on a Sunday)
4) Process must be served on EACH ∆ in the action
NOTE: actual notice is IRRELEVANT to a determination of whether π has complied with the formalities for proper service of process (i.e. cts strictly enforce these procedures so π cannot say that ∆ knew of the action based on a telephone call)
METHOD #2: LEAVE & MAIL
What is the “leave and mail” method of serving process?
W/in in 120 days from filing process, π must…
1) Personal Delivery:
DELIVER process(via process server)to a person of suitable age & discretion (NOTE: does not necessarily mean 18) at ∆’s actual DWELLING place OR actual PLACE OF BUSINESS; AND
2) Mail:
W/in 20 days from delivery, MAIL a copy by regular mail to ∆ at ∆’s actual PLACE OF BUSINESSOR at his LAST KNOWN RESIDENCE; AND
Note: The order of the mailing and the personal delivery do not matter but they must take place w/in 20 days of each other
Note: The delivery can be to the dwelling and the mailing to the place of business
3) Filing:
File proof of service= an affidavit by process server describing the details of service (e.g. date, time, place, desc. of person served, due diligence)
NOTE: If π fails to file proof of service, it’s NOT a jx defect (and a grounds for dismissal); the consequence = postponing ∆’s time to respond
Note: The filing of proof of service need NOT take place w/in the 120 day pd (even though other steps NEED be)
NOTE: If ∆ is personally served, no need to file proof of service (i.e. service is complete upon delivery)
4) SERVICE COMPLETE DATE
10 days after proof of service is filed, Service is COMPLETE which starts the clock on ∆’s response time
NOTE: if the action has more than one ∆, EACH ∆ must be served with his own set of process → even if at SAME resident. Must have multiple copies so each ∆ gets their own
METHOD #3: AFFIX & MAIL (NAIL & MAIL)
What is the “affix and mail” method of serving process?
NOTE: This is also known as “nail and mail”
W/in in 120 days from filing process, π must…
1) AFFIX
AFFIX (e.g. via taping, or rubber band to doorknob) process (via process server) to the door of ∆’s actual dwelling place OR actual place of business;
2) MAIL
MAIL a copy by regular mail to ∆ at ∆’s actual place of businessOR last known residence w/in 20 days;
3) DUE DILIGENCE
Process server must have exercised DUE DILIGENCE (by making attempts to serve ∆ directlyOR by delivery to person of suitable age/discretion);
AND
Sufficient due diligence is a fact-specific inquiry, BUT look for several attempts to deliveron different days of the week and at different times of the day
4) FILING
File proof of service= an affidavit by process server describing the details of service (e.g. date, time, place, desc. of person served, due diligence)
NOTE: If π fails to file proof of service, it’s NOT a jx defect (and a grounds for dismissal); the consequence = postponing ∆’s time to respond
Note: The filing of proof of service need NOT take place w/in the 120 day pd (even though other steps NEED be)
NOTE: If ∆ is personally served, no need to file proof of service (i.e. service is complete upon delivery)
5) SERVICE COMPLETE DATE
10 days after proof of service is filed, Service is COMPLETE which starts the clock on ∆’s response time
NOTE: if the action has more than one ∆, EACH ∆ must be served with his own set of process → even if at SAME resident. Must have multiple copies so each ∆ gets their own
METHOD #1: SERVING PROCESS BY PERSONAL DELIVERY
When is service “complete” with thepersonal delivery method of serving process?
Service by personal delivery is COMPLETE upon server’s tender of summons directly to ∆
If ∆ refuses to accept the delivery of process, server can leave process w/in ∆’s IMMEDIATE VICINITY
NOTE: if the action has more than one ∆, EACH ∆ must be served with his own set of process
NOTE: If personal delivery at residence is NOT DIRECTLY to the person but rather to their child or spouse who later gives it to them, this is RE-DELIVERY by a go-between and is NOT proper service. Action will be subject to dismissal if ∆ assets timely defense.
The server would have had to follow the “leave & mail” process
METHOD #4: EXPEDIENT SERVICE
What should π do if a traditional method of serving process is not available?
Expedient Service = if the traditional methods (i.e. personal delivery; leave and mail; or nail and mail) are not practicable, π can make ex parte MOTION to the ct for an ORDER allowing an improvised, expedient method
An ORDER is NECESSARY if π wants to use an improvised service of process
Expedient methods which may be deemed Reasonable alternatives are:
(i) service on ∆’s liability insurer,
(ii) service on a family member or business associate;
(iii) service by email; or
(iv) service by publication
NOTE: if the action has more than one ∆, EACH ∆ must be served with his own set of process
METHOD #6(a): INFANT
What is the process for serving process on an infant?
1) Can use one of the traditional methods (e.g. physical delivery; leave and mail; nail and mail; etc)of serving process
2) The infant ∆’s name goes on the summons, BUT process must be served on any of these adults: (i) a parent of the infant ∆
(ii) a guardian of the infant ∆
(iii) any person having legal custody of the infant ∆
(iv) if the infant is married, upon an adult spouse with whom the infant lives
NOTE: if the infant ∆ is ≥ 14 yrs old, process must be served on an eligible adult AND the infant (TWO SETS OF PROCESS RQRD)
NOTE: if the action has more than one ∆, EACH ∆ (or adult rep) must be served with his own set of process
METHOD #6(b): MENTALLY INCAPACITATED
What is the process for serving process on a mentally incapacitated person?
1) Can use one of the traditional methods (e.g. physical delivery; leave and mail; nail and mail; etc) of serving process
2) Depends on whether there is an appointed guardian… If mentally incapacitated ∆ HAS a court-appointed guardian, must serve incapacitated ∆ AND the guardian (TWO SETS OF PROCESS RQRD)
If the mentally incapacitated person DOES NOT HAVE a court-appointed guardian, must serve incapacitated ∆ & then the court will later appoint a guardian ad litem (guardian for the purpose of the pending litigation)
Serving Process on ∆ Outside of NY
What is the process for serving process a ∆ who’s OUTSIDE NY?
**ALWAYS ON BAR EXAM
1) Same methods as used w/in NY (assuming that there is a pjx basis for out-of-state service); rules in jx where process is served are IRRELEVANT (LOOK AT NY RULES ONLY)
2) Who can serve?
(i) any NY resident who is ≥ 18 yrs old
(ii) anyone authorized to serve process by the law of the jx where service is made (b/c NY law allows this)
(iii) any attorney who is licensed in the jx where services is made
SERVING PROCESS ON A CORPORATE ∆
What are the TWO methods for serving process on corporate∆s?
1) Personal delivery to any of the following corporate representatives:
(i) officer of the corporation
(ii) director of the corporation
(iii) designated agent
(iv) managing agent (employee who has supervisory
power)
NOTE: Can be served to any of these corporate representatives ANYWHERE IN THE U.S., if there is a basis of pjx over the corporation
2) Service on NY Sec. of State (designated agent)…
IF ∆ is:
Scenario A
(i) domestic corp. (incorp’d in NY);OR
(ii)a foreign corp. authorized to do business in NY (i.e. licensed)
THEN π must personally deliver 2 copies to NY Sec. of State
Scenario B
If ∆ is an unlicensed foreign corp.
THEN π must
(i) personally deliver1 copy to Sec. of State; AND
(ii) mail 1 to corp. ∆ by CERTIFIED mail (return receipt requested)
NOTE: STILL need a valid basis of pjx to serve corporate ∆
METHOD #7: 1st Class Mail + Acknowledgment
What is the method to service process by 1st class mail plus acknowledgment?
1) Process:
(i) Mail process to ∆ by 1st class mail,
(ii) enclose 2 copies of statutory acknowledgement form; AND
(iii) enclose a return envelope, postage prepaid, addressed to sender (π)
2) Service is effective ONLY IF ∆ signs 1 form & returns it to π w/in 30 days(complete upon sending signed form)
If ∆DOES NOT return the form, service is not effective and π MUST start the process ALL OVER again and serve process some other way
BUT∆ must pay for expenses in π having to go through another route if ∆ does not return by mail
Note: this method can be used REGARDLESS of whether ∆ is within or outside NY
Note: this method CANNOT be used on infantsORinsane (i.e. MUST use traditional method)
Note: ∆’s return of form is NOT a concession that court has pjx (∆ can still raise jx issues in the answer)
LIST OF ALL FORMS OF SERVING PROCESS
What are the traditional AND non-traditional methods of serving process on a person ∆?
1) Traditional…
(i) personal delivery to ∆
(ii) leave and mail
(iii) “nail and mail” (affixing and mailing)
(iv) expedient service (court improvised)
(v) service on ∆’s designated agent
2) Non-traditional…
(i) Special rules for Infants and Mentally Incapacitated
(ii) 1st class mail PLUS acknowledgment
METHOD #5: SERVING PROCESS ON A DESIGNATED AGENT
What is the process for serving process a the designated agent of a ∆?
The agent of a ∆ may be served with process in the same means that the ∆ would be served.
Note: The agent MUST be a person that was the party expressly specifies as a person upon whom process may be served in a dispute arising from a contract
