G. Service Of Process

• Jurisdiction: New York

G. Service of Process

Service of process is extremely complex. It is also extremely important. While this section discusses some concepts in this area, you must review the CPLR and any associated statutes to determine whether service was proper in each case, as the statutes and cases may change the requirements of service.⁷⁹⁶ For example, the summons, when served, must bear the index number assigned by the clerk upon filing. Service of the summons before filing will not secure jurisdiction over the defendant.

The purpose of the rules dealing with service of process is to provide notice to the defendant of the action pending against him or her and to provide the defendant with an opportunity to defend the action. Service can be accomplished in a variety of ways, some more preferable than others and it may vary in each case. The method of service ultimately employed is based on numerous considerations. Some methods and considerations are set forth in the remainder of this section. The practitioner must read the CPLR and any associated statutes carefully before attempting service.

1. Personal Service

In the hierarchy of service, personal service is clearly preferred. If the summons (and complaint or with notice) is personally served upon the defendant within the state, the defendant must answer or otherwise move within 20 days after such service or he or she is in default. If personal service is effected upon the defendant personally, but outside the state, the defendant has 30 days to answer or otherwise move.⁷⁹⁷

a. Personal Service by Mail

As an alternative to the methods of personal service authorized by section 307, 308, 310, 311 or 312 of the CPLR, service may be commenced by first-class mail under CPLR 312-a. This method is not recommended if the statute of limitations is close. We recommend a full and careful reading of the statute and the McKinney's commentaries.⁷⁹⁸ In the proper circumstances, however, personal service by mail can reduce costs and move the litigation forward efficiently.

To successfully serve under this Rule, the defendant must cooperate. However, the defendant need not do so. In Komanicky v. Free,⁷⁹⁹ the pro se plaintiff mistakenly believed that CPLR 312-a required the defendant to cooperate. It did not. If a defendant does not cooperate, plaintiff's only remedy is to serve by another means and attempt to recoup the cost of the CPLR 312-a service. Actual receipt of the document served is irrelevant.

2. Substituted Service (Nonpersonal Service)

Just as between personal service and substituted service the law has a preference for personal service, there seems to be a similar hierarchy within substituted service.

a. Delivery to a Person of Suitable Age and Discretion⁸⁰⁰

Service upon a person of suitable age and discretion means exactly that. Where service is on a person under the age of 14, the service generally will be deemed invalid. Where service is on a person 14 to 18, you must consider whether the person is likely to turn the summons over to the person meant to be served. If that is not likely, re-serve the summons, as service may not be valid. This situation usually arises where a child of the defendant has been served. It is extremely important that you check your affidavit of service to see who was served. If there is any question, ask the process server for a supplemental affidavit immediately, while the identity of the person served is still fresh in his or her mind.

There are two procedural/administrative requirements for this type of service. The first is to mail the summons to the defendant's last known residence or to the defendant's actual place of business by first-class mail in an envelope marked "personal and confidential," and "not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served." The second is to provide proof of service via an affidavit. The affidavit must be filed with the clerk of the court designated in the summons (e.g., if in supreme court, the county clerk where the action is venued) within 20 days after service of the summons. Service is complete 10 days after the filing of the affidavit.

b. Service Upon an Agent for Service⁸⁰¹

An agent may be designated for service by a person, partnership or corporation. The designation must be in writing, executed and acknowledged in the same manner as a deed and filed in the county clerk's office where the principal to be served resides or has its principal office. The designation is valid for three years unless revoked. Service upon said agent is complete on delivery. The defendant then has 30 days to answer. Corporations may also designate an agent under N.Y. Business Corporation Law § 306(a) (BCL).

c. "Nail and Mail" Service⁸⁰²

The nail-and-mail method may be used to serve an individual or partnership.⁸⁰³ The summons (and complaint or with...