NY Practice - PERSONAL JURISDICTION (Methods of service)

Question 1

In a supreme court action, with whom do you file process to commence a case?

And what 3 things do you need for court to render a valid judgment

Answer 1

COUNTY CLERK ( NOT clerk of the supreme court)

In addition to subject matter jurisdiction, three additional jurisdictional elements must be satisfied in order for a court to render a valid judgment, i.e. one which can be enforced in NY and entitled to full faith and credit in other states

(1) PROPER COMMENCEMENT of the action
(2) PROPER SERVICE of process on the D
(3) Proper BASIS of jurisdiction over the person or property involved in the action

Question 2

Filing of Process (process = summons and notice, or summons and complaint) will be valid Commencement if process is served on D within how many days?

Answer 2

120 days

But if P is having trouble serving D within the 120 day period, court has discretion, upon P’s motion, to extend the time to make service if P can demonstrate either:

(1) a showing of good cause, or
(2) the interest of justice justified an extension

if D wants to challenge P’s untimely service of process, D must raise the issue on a motion - if D fails to raise it, defense of untimely service is waived

e.g. assume P was injured by D in auto accident on Mar. 1, 2006 (PI so 3 yr S/L). She files process in an action against D on Mar. 1, 2009, and process is served on D in June 25, 2009. Has P complied with S/L?
YES (1) filed process w/in 3 years and (2) service of process was made on D within 120 days of filing (117 days later)

Note: If plaintiff makes a mistake in the FILING PROCEDURE, such as serving process before the filing of such process, or failing to purchase an index number, the court has discretion, upon P’s motion, to permit correction of the mistake provided D suffers no prejudice, the filing occurs within S/L and the filing fee is paid.

Question 3

Forms of Process

Answer 3

SUMMONS and COMPLAINT - Summons advises D that P is suing D in a particular court. The complaint is P’s pleading, which specifies the transaction or occurrence that is the subject matter of the action and spells out the essential elements of P’s cause of action

SUMMONS AND NOTICE - when summons is not accompanied by complaint, must have sufficient “notice” inscribed on the face of the summons or on a one-page attachment
Notice consists of:
(1) giving a brief statement of the nature of the action (e.g. this is an action for breach of contract)
(2) Type of relief being sought (e.g. seeking injunction, or damages etc.)
(3) If damages are sought, specify the amount of damages (EXCEPTION: in a personal injury or wrongful death action, neither the notice nor complaint may specify the amount of damages being sought)

Question 4

What is the consequence of P commencing an action with a “naked” summons (i.e. unaccompanied by either a complaint or notice)?

Answer 4

This is a defect in personal jurisdiction and action would be subject to dismissal for that reason alone, provided D makes a timely jurisdictional objection

Question 5

Methods of Serving Process: Who may serve process?

Answer 5

Any person who is at least 18 years old, provided that person is not a party to the action (e.g. P’s lawyer or spouse could serve process, but not P herself)

Question 6

Methods of Serving Process: When may process be served?

Answer 6

Any day of the week except:

(1) Sunday
(2) if D is a Saturday-Sabbath observer, and P knows it, P may not properly serve that particular D on a Saturday. Innocent service on such D is not a defect
(3) Service MAY be made on a holiday (provided it is not a Sunday)

Question 7

What is the consequence of failure to comply with the formalities for proper service of process?

Answer 7

If do not comply strictly with the formalities, it is considered defective service and that is grounds for dismissal - MUST FOLLOW STATUTORY METHODS OF SERVICE WITH PRECISION

Note: actual notice to D is irrelevant to a determination of whether P has complied with the formalities for proper service of process

Question 8

What are acceptable Methods of Serving Process on Natural Persons?

Answer 8

(1) Personal Delivery to D
(2) Leave and Mail
(3) Affixing and Mail (“Nail and Mail”)

Question 9

What are the requirements for service by “Personal Delivery” to Defendant

When is service by “Personal Delivery” complete?

Answer 9

Service by personal delivery is “complete” upon process server’s tender of summons directly to D (D’s response time is measured from date that service is complete)
NOTE: for this method of service, must be given to D directly, no one else

What if D refuses to accept the delivery of process?
-can leave process in the D’s “Immediate Vicinity” - e.g. if D is sitting at a desk, throw it on the desk, if D is running away, throw it at D’s feet

Question 10

What are the requirements to serve process by method of “leave and mail” ?

Answer 10

Process server may DELIVER process to person of “suitable age and discretion” at
(1) D’s actual dwelling place, OR
(2) D’s actual place of business;
PLUS mail a copy by regular mail to D at:
(1) D’s actual place of business OR
(2) D’s last known residence

NOTE: delivery step must be made at a place where D is actually located; mailing can go to D’s last known residence - both steps don’t have to be made at same place

The 2 service steps (the mailing and delivery) must be done within 20 days of each other, and both must be done within 120 days of filing process

If the suit is against more than one defendant, each D must be served with is OWN set of process

P NEED NOT USE CERTIFIED MAIL, REGULAR (first class) MAIL is fine

e. g. Will and grace (joint tortfeasors) live in a high-rise apt building. when process server arrives at building, she is told by guard that she may not go up to Will and Grace’s apartment. Would service be valid if ONE COPY of summons and complain is left with guard and 2nd copy is then mailed to will and grace at their apt address 10 days later?, and w/in 120 days from the filing process?
(1) guard is person of suitable age and discretion and (2) delivery was made at actual dwelling (3) mailing and delivery within 120 das of each other - BUT needed to give each D their own copy so this is improper service (but close)

Question 11

For purposes of “leave and mail” method of serving process, who counts as a person of “suitable age and discretion” ?

Answer 11

does not have to be an adult, teenagers count, though courts tend not to like kids under the age of 12 (though this is not a hard and fast rule

Question 12

What are the requirements to serve process via the method of “affixing and mailing” (aka “nail and mail”) ?

Answer 12

“Affixing” consists of either taping it to door or using rubber band around doorknob

Server may affix process to the door of D’s
(1) actual dwelling place
(2) actual place of business
PLUS mail a copy by regular mail to a D’s (1) actual place of business or (2) last known residence
(3) DUE DILIGENCE - process server must first exercise DUE DILIGENCE by
—(i) making an attempt to serve D directly and, if that fails
—(ii) try to leave process with a person of suitable age and discretion at the home or place of business

Affixing and mailing, in either order, must be done within 20 days of each other and both within 120 days of filing process (mailing need not be in same location as “affixing”)

Question 13

How can a process server satisfy the “Due diligence” requirement for “affixing and mailing” method of serving process?

Answer 13

Whether process server exercised “due diligence” is a Fact-Specific Inquiry, but as a practical matter look for:
— Several attempts on different days of the week AND at different times of the day to try and get process into hands of either the D, or a suitable person

Question 14

“Proof of Service”

Answer 14

For both “leave-and-mail” and “affix-and-mail” service, PROOF OF SERVICE must be filed after the two service steps have been performed

Proof of Service - is an affidavit by the process server describing the details of service - e.g. date, time, place, description of person served, due diligence if relevant

Failing to file proof of service IS NOT A JURISDICTIONAL DEFECT

The purpose of filing proof of service is that it is necessary to make service COMPLETE (D’s response time runs from date on which service is complete- which in the case of personal delivery, happens when process server tenders summons delivery) - if never COMPLETE service, D’s time to respond is postponed

For both leave-and-mail and affix-and-mail, SERVICE IS COMPLETE 10 days after “proof of service” is filed

though 2 steps need to be completed w/in 120 days, proof of service need not take place within 120 day period

Note: there is no requirement that proof of service be filed when service is made by PERSONAL DELIVERY to D bc with PERSONAL DELIVERY, service is complete upon the delivery to D.

Question 15

Expedient Service - “Court Invented Service” (aka “improvised service”)

Answer 15

If the foregoing methods of service are NOT PRACTICABLE, P may make an ex part motion to the court for an order allowing an improvised, expedient method – some reasonable alternative appropriate in the circumstances - e.g. service on D’s liability insurer, a family member, or business associate, or service via email

but NOTE: cannot improvise service without first getting a court order!! - if you do it is a JURISDICTIONAL DEFECT (need permission first)

Question 16

Agent Specifically Designated by D to Receive Process

Answer 16

sometimes in written contracts, a party expressly specifies agent upon whom process may be served in dispute arising from contract

Question 17

Service on infants and the Mentally Incapacitated

Answer 17

When D is an infant, D’s name goes on the summons but process must be served on any one of the following adults:

(1) A parent of infant
(2) A Guardian
(3) Any person having legal custody
(4) If infant is married, upon an adult spouse with whom infant resides

If infant is 14 or over, process must be served on an eligible adult AND the infant - TWO SETS OF PROCESS WILL BE NECESSARY

when D is mentally incapacitated - serve on person for whom the court has appointed a guardian - TWO SETS OF PROCESS WILL BE NECESSARY

If D is mentally incompetent but no judicial proceeding has been brought for the appointment of a guardian, D is served in sam manner as any other D. Court will later appoint a GUARDIAN AD LITEM (guardian for the purpose of pending litigation)

Question 18

Service Outside NY

Answer 18

Same methods that are used to serve D in NY are used when D is located outside NY (this assumes there is a basis for out-of-state service) -

so even if D is in CA and CA does not allow “affix-and-mail” method, the D may be served in this manner for a NY action

Question 19

Who may serve process in the other jurisdiction (if D is outside NY)?

Answer 19

(1) Any NY resident who is at least 18 years old
(2) Anyone authorized to serve process by the laws of the jurisdiction where service is made
(3) Any attorney who is licensed in the jurisdiction where service is made

e. g. in NY case, assume D, in CA, is served by a 17-yr-old process server, who is licensed under CA law, by the affix-and-mail method, which is NOT recognized in CA. is service valid?
- -YES, NY methods of service control (CA methods irrelevant) and 17-yr-old process server is OK bc CA law for PERSON who serves process

Question 20

Service of Corporations - Who may you make personal delivery to for service of process?

Answer 20

2 traditional methods

(1) PERSONAL DELIVERY
(2) Service on NY Secretary of State

PERSONAL DELIVERY

(1) An officer of the corporation (i.e. President, CEO, VP etc.)
(2) Director
(3) Designated Agent
(4) Managing Agent (i.e. any corporate employee who has supervisory responsibilities)

If there is a basis of jurisdiction over the corporation, any one of the eligible corporate reps may be served with process by personal delivery anywhere in the U.S. (but NOTE: must go to one of those ppl directly, can’t hand to their receptionist)

SERVICE OF NY SEC OF STATE

(i) For a DOMESTIC corporation (incorporated in NY) OR a FOREiGN corporation (incorporated outside NY) AUTHORIZED to do business in NY (aka a licensed corp) - personal delivery of 2 copies of process to the Office of the NY Secretary of State (and is compete upon delivery to Sec. of State, regardless of when corp receives it)
(ii) For UNLICENSED FOREIGN corporation, personally deliver one copy of process to the Office of the Secretary of State PLUS P must mail one copy to the corporation by certified mail, return receipt requested

Question 21

Non-Traditional Method of Service: Service by First-Class Mail PLUS Acknowledgement

Answer 21

Mail process to D by First Class Mail, enclosing 2 copies of a statutory acknowledgment form, plus a return envelope, postage prepaid, addressed to sender. Service will be effective ONLY IF D signs and returns one of the acknowledgment forms to P within 30 days after D receives the mailed process - Service COMPLETE upon D’s POSTING of the signed form - return of acknowledgment form DOES NOT waive jurisdictional objection, can still raise it in motion to dismiss or answer.

If D does not return the acknowledgment form, service by mail is INEFFECTIVE and P has to serve process using one of the traditional methods (and D has the small penalty of having to pay P’s expenses for making the 2nd service of process)

Service by FIRST-CLASS MAIL PLUS ACKNOWLEDGMENT may be used regardless of whether D is within or outside NY
–this form of service also avialable to all types of Ds (e.g. natural persons, corporations) EXCEPT INFANTS and MENTALLY INCAPACITATED persons for whom guardians have been appointed (for ment inc with no guardian have to use traditional methods)

Defendant’s return of acknowledgement form is NOT A CONCESSION that the court has jurisdiction, merely an acknowledgment of receipt - D can still raise jurisdictional objections in motion or in an answer