Service of Process

Question 1

How is an action commenced?

Answer 1

An action is commenced by filing process (summons and notice or summons and complaint) with the clerk of the court. Filing of process is valid commencement (including interposing of claim for SOL puproses) provided that process is served on defendant no later than 120 days from commencement.

Question 2

When and how can the plaintiff get an extension on the 120 day time limit for service of process?

Answer 2

If the plaintiff has trouble serving defendant within the 120 day period, the court has the discretion, upon plaintiff’s motion, to extend the time to make service if plaintiff can demonstrate either:

1. showing good cause (due diligence), or
2. interests of justice justifies an extension.

Question 3

What are the two forms of process can take?

Answer 3

1. Summons and complaint: The summons advises defendant that plaintiff is suing defendant in a particular court. The complaint is plaintiff’s pleading, which specifies the transaction or occurrence that is the subject matter of the action and spells out the essential elements of plaintiff’s cause of action OR
2. Summons with notice: allows the action to commense without a lot of paperwork (complaint can come later). When the summons is not accompanies by a complaint, it must have sufficient “notice” inscribed on the face of the summons or on a one-page attachment, which consists of:
   a. a brief statement of the cause of action;
   b. type of relief being sought;
   c. if seeking damages, must specify the amount unless it is a personal injury or wrongful death action.

Question 4

Who may serve process?

Answer 4

Process may be served by any person who is at least 18 years old, provided the person is not a party to the action.

Question 5

When can process be served?

Answer 5

Process can be served any day of the week, except:

1. Sunday.
2. If defendant is a Saturday-Sabbath observer, and plaintiff knows it, plaintiff may not properly serve that particular defendant on Saturday.

Service can be made on a holiday as long as it does not fall on Sunday.

Question 6

What are the methods of serving process on natural persons?

Answer 6

1. Personal delivery to defendant;
2. Leave and Mail
3. Affixing and Mailing
4. Expedient Service - court ordered service

Question 7

What does personal delivery on the defendant consist of?

Answer 7

Service by personal delivery is complete upon process server’s tender of summons directly to the defendant. (Defendant’s time is measured from date that service is complete.) If the defendant refuses to accept the delivery of process, leave it in the defendant’s immediate vicinity.

Question 8

What does leave and mail serving of process consist of?

Answer 8

Process server may deliver process to person of suitable age and discretion at defendant’s actual dwelling place or actual place of business PLUS mail a copy by regular mail to defendant at defendant’s actual place of business or last known residence. The two service steps must be performed within 20 days of each other, and both steps must take place within 120 days from filing process.

If the suit is against more than one defendant, each defendant must be served with his own set of process.

Question 9

What does affixing and mailing method of serving process consist of?

Answer 9

“Affixing” consists of taping or rubber band on doorknob. Process server may AFFIX process to the door of defendant’s actual dwelling place or actual place of business PLUS mail a copy by regular mail to defendant at defendant’s actual place of business or last known residence.

Before using this method, the process server must first exercise due diligence by (1) making an attempt to serve defendant directly and, if that fails, (2) try to leave process with a person of suitable age and discretion at the home or place of business.

Due diligence is showing several attempts on several days of the week on different times of the day at different locations.

Affixing and mailing, in either order, must be performed within 20 days of each other, and both steps must be performed within 120 days from filing process. Mailing need not be to same location as affixing.

Question 10

When is filing proof of service required?

Answer 10

For both leave-and-mail and affix-and-mail service, proof of service must be filed after the two service steps have been performed. This is an affidavit by the process server describing the details of service, e.g. date, time, place, description of person served, due dilligence if relevant.

Service is complete 10 days after proof of service is filed.

Question 11

What is expedient or “court ordered service”?

Answer 11

If the foregoing methods of service are not practicable, plaintiff may make an ex parte motion to the court for an order allowing an improvised expedient method - some reasonable alternative appropriate in the circumstances, e.g. service on defendant’s liability insurer, a family member or business association, or service via email.

Question 12

How is service outside of NY completed?

Answer 12

The same methods that are used to serve defendant within NY are used when defendant is located outside NY. The following people can serve process in the other jurisdiction:

1. Any NY resident who is at least 18 OR
2. Anyone who is authorized to serve process by the laws in the state OR
3. Any attorney licensed to practice in the state.

Question 13

What are the two methods of service of process on corporations?

Answer 13

1. Personal delivery to any of the following corporate representatives:
   a. any officer of corporation;
   b. any member of the board of directors;
   c. a designated agent;
   d. any managing agent - any corporate employee who has managing responsibilities.

If there is a basis of jurisdiction over the corporation, any one of the eligible corporate representatives may be served with process by personal delivery anywhere in the U.S. Service of process is complete upon delivery to the corporate representative.

2. Service on the NY Secretary of State:

For a domestic corporation OR a foreign corporation authorized to do business in NY: personally deliver two copies of process to the office of the NY Secretary of State. Service of process will be complete upon delivery of process to Secretary of State, regardless of when coorporation receives it.

For an unlicensed foreign corporation: personally deliver 1 copy of process to th office of the NY Secretary of State plus plaintiff mails one copy to the corporation by certified mail, return receipt requested.

Question 14

What is the non-traditonal method of service by first class mail plus acknowledgement?

Answer 14

Mail process to defendant by first-class mail, enclosing two copies of a statutory acknowledgement form, plus a return envelope, postage prepaid addressed to sender. Service will be effective only if the defendant signs and returns one of the acknowledgement forms to plaintiff within 30 days after defendant receives the mailed process. Service is complete upon defendant’s posting of the signed form.