Commencement/Process

Question 1

How is an action validlycommenced?

Answer 1

For a valid action, π must…

1) “file process” w/ the County Clerk (if filing action for Supreme Ct.) within 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 ∆ within 120 days after filing with the county clerk

• • NOTE: Court has discretion to…
    a) extend beyond 120 days if π makes an ex parte motion & makes a showing of good cause OR interest of justice (flexible)

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)

b) permit the correction of a mistake in the filing procedure, PROVIDED (i) the ∆ suffers no prejudice; (ii) the filing occurs within SOL; AND (iii) the filing fee is paid

Question 2

What are the twoforms of process?

Answer 2

1) Summons & Complaint

Summons = notifies ∆ that he is being sued in a particular court

Complaint = π’s pleading, which spells out elements of COA

2) Summons & Notice

Notice must state…

- brief statement of nature of action;
- nature of relief sought (damages, equitable remedy); 
- AND if damages are sought, the amount of damages (UNLESS personal injuryOR wrongful death – then CANNOT state)

NOTE:if no complaint or notice attached (a “naked summons”), then defect in personal jurisdiction & action can be dismissed (PROVIDED the ∆ files a timely jurisdiction objection)

Question 3

What are the basic requirementsserving process?

Answer 3

1) Process server must be 18 or older
2) Process server cannot be a party to the action (∆)
3) Process may be served on any day EXCEPT Sunday, and Saturday (provided ∆ is a Saturday Sabbath observer and ∆ knows it)
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. courts strictly enforce these procedures)

Question 4

What is the “leave and mail” method of serving process?

Answer 4

Within in 120 days from filing process, π must…

1) DELIVER process(via process server)to person of suitable age & discretion (NOTE: does not mean 18 neccesarily) at ∆’s actual dwelling place OR actual place of business; AND
2) MAIL a copy by regular mail to ∆ at ∆’s actual place of businessOR at his last known residencew/in 20 days; AND
3) File proof of service(affidavit by process server describing the details of service (e.g. date, time, place, desc. of person served, due diligence)

** If π fails to file proof of service, it’s NOT a jurisdictional defect (and a grounds for dismissal); the consequence = postponing ∆’s to respond

** The filing of proof of service need NOT take place within the 120 day period (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)

** Service is COMPLETE (which starts clock on ∆’s response time) 10 days after proof of service is filed

** NOTE: if the action has more than one ∆, EACH ∆ must be served with his own set of process

Question 5

What is the “affix and mail” method of serving process?

NOTE: This is also known as “nail and mail”

Answer 5

Within in 120 days from filing process, π must…

1) AFFIX (e.g. via taping) process (via process server) to the door of ∆’s actual dwelling place OR actual place of business;
2) MAIL a copy by regular mail to ∆ at ∆’s actual place of businessOR last known residence within 20 days;
3) Must have exercised DUE DILIGENCE (by making attempts to serve ∆ directlyOR by delivery to person of suitible 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) File proof of service(affidavit by process server describing the details of service (e.g. date, time, place, desc. of person served, due diligence)

** If π fails to file proof of service, it’s NOT a jurisdictional defect (and a grounds for dismissal); the consequence = postponing ∆’s to respond

** The filing of proof of service need NOT take place within the 120 day period (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)

** Service is COMPLETE (which starts clock on ∆’s response time) 10 days after proof of service is filed

NOTE: if the action has more than one ∆, EACH ∆ must be served with his own set of process

Question 6

When is service “complete” with thepersonal delivery method of serving process?

Answer 6

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 within ∆’s immediate vicinity

NOTE: if the action has more than one ∆, EACH ∆ must be served with his own set of process

Question 7

What should π do if a traditional method of serving process is not available?

Answer 7

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 court for an ORDER allowing an improvised, expedient method

An order is NECESSARY if π wants to use an improvised servise of process

Reasonable alternatives e.gs: service on ∆’s liability insurer, a family member or business associate, or service by email

NOTE: if the action has more than one ∆, EACH ∆ must be served with his own set of process

Question 8

What is the process for serving process on an infant?

Answer 8

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:
- a parent of the infant ∆
- a guardian of the infant ∆
- any person having legal custody of the infant ∆
- 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

NOTE: if the action has more than one ∆, EACH ∆ (or adult representative) must be served with his own set of process

Question 9

What is the process for serving process on mentally incapacitated person?

Answer 9

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 necessary!)

If the mentally incapacitated person DOES NOT HAVE a court-appointed guardian, must serve incapacitated ∆ & then court will later appoint a guardian ad litem

Question 10

What is the process for serving process a ∆ who’s OUTSIDE NY?

Answer 10

1) Same methods as used within NY (assuming that there is a personal jurisdiction basis for out-of-state service); rules in jurisdiction where process is served are IRRELEVANT

2) Who can serve?
- any NY resident who is ≥ 18 yrs old
- anyone authorized to serve process by the law of the jurisdiction where service is made
- any attorney who is licensed in the jurisdiction where services is made

Question 11

What are the TWO methods for serving process on corporate∆s?

Answer 11

1) Personal delivery to:
- officer of the corporation
- director of the corporation
- designated agent
- managing agent (employee with supervisory power)

NOTE: Can be served to any of these corporate representatives ANYWHERE IN THE U.S., if there is a basis of personal jurisdiction over the corporation

2) Service on NY Sec. of State (designated agent)… if ∆ is a
(i) domestic corp. (incorporated in NY);OR
(ii) a foreign corp. authorized to do business in NY (i.e. licensed), π must personally deliver 2 copies to NY Sec. of State

If ∆ is an unlicensed foreign corp., π must personally deliver1 copy to Sec. AND mail 1 to corp. ∆ by CERTIFIED mail (return receipt requested)

NOTE: STILL need a valid basis of personal jurisdiction to serve corporate ∆

Question 12

What are is the method to service process by 1st class mail plus acknowledgment?

Answer 12

1) Mail process to ∆ by 1st class mail, enclosing:
- 2 copies of statutory acknowledgement form; AND
- a return envelope, postage prepaid, addressed to sender (π)

2) Service is effective ONLY IF ∆ signs 1 form & returns it to π within 30 days(complete upon sending signed form)

If ∆DOES NOT return it, service is not effective and π MUST serve process some other way BUT∆ must pay for expenses

NOTE:

• this method can be used REGARDLESS of whether ∆ is within or outside NY
• this method CANNOT be used on infantsORinsane (i.e. MUST use traditional method)
• ∆’s return of form is NOT a concession that court has personal jurisdiction (∆ can still raise jurisdictional issues in the answer)

Question 13

What are the traditional AND non-traditional methods of serving process on a person ∆?

Answer 13

1) Traditional…
- personal delivery to ∆
- leave and mail
- “nail and mail” (affixing and mailing)
- expedient service (court improvised)
- service on ∆’s designated agent

2) Non-traditional…
- 1st class mail PLUS acknowledgment