Summons, Service of Process, and Appearance

• Author: Michael H. Barr/Burton N. Lipshie/Sharon Stern Gerstman
• Pages: 403-470

Chapter 9

summons, serviCe of ProCess,

and aPPearanCe

QUICK VIEW

Definitions: Service of process notifies defendants of claims against them and is necessary, though not always

sufficient, for personal jurisdiction. Process consists of the summons and complaint or summons with notice.

The summons is the document that advises defendant of the suit, the time limits for responding, and the conse-

quences of failing to respond.

Scope of Chapter: How to serve process. Who can serve process. Whom to serve. Requirements for a valid

summons. Proof of service. Amending the summons and proof of service. Challenging service.

Strategies and Tactics: The attorney serving process must take personal charge of the details. Do not rely on

the process server to know the law. A mistake can be fatal to your case. Counsel for defendant must challenge

service of process immediately. Failure to act promptly may waive the jurisdiction defense.

Statutes and Rules: CPLR 301-322.

Related Topics: Statutes of Limitations, Ch 3; Subject Matter Jurisdiction, Ch 6; Personal Jurisdiction, Ch 7;

Default Judgment; Dismissal for Failure to Act; Discontinuance, Ch 39.

FORMS: See digital access for the following forms:

• Form 9:10, Summons.

• Form 9:20, Third Party Summons.

• Form 9:30, Ex Parte Order For Service Under CPLR 308(4) in Matrimonial Action.

• Form 9:40, Affirmation in Support of Ex Parte Order for Service Under CPLR 308(4) in Matrimonial

Action.

• Form 9:50, Affidavit of Service on Individual.

• Form 9:60, Affidavit of Service on Corporation.

• Form 9:70, Admission of Service.

• Form 9:80, Acknowledgement of Service by Mail.

• Form 9:90, Demand for Complaint.

• Form 9:100, Notice of Appearance.

New York Civil PraCtiCe Before trial 9-2

TABLE OF CONTENTS

I. Overview

A. General Points

§9:01 Purpose

§9:02 Actual Notice Neither Required nor Sufficient

§9:03 Service and Jurisdiction

§9:04 Filing, Service, and Commencement of Suit

§9:05 The Summons

§9:06 Serve Summons with Complaint or Notice

§9:07 Methods of Service

§9:08 Waiver of Service

B. Time Limits

§9:20 Serve Within 120 Days After Filing

§9:21 Motion to Dismiss or Extend Period for Service

§9:22 No Limit on Length of Extension

§9:23 No Service on Sunday

§9:24 Restricted Service on Saturday

C. Who May Serve Process

§9:30 In New York

§9:31 Outside New York

D. Service Abroad

§9:40 Hague Convention

§9:41 Service in a Non-Hague Convention Country

II. The Summons

A. Content

1. ORIGINAL SUMMONS

a. Basic Requirements

§9:50 Preparation and Issuance

§9:51 Caption

§9:52 Body

§9:53 Indorsement

b. Jurisdictional Defects

§9:60 Caution: Dismissal

§9:61 Unclear Which Defects Are Jurisdictional

§9:62 Defendant Can Waive Defects

c. Specific Requirements and Defects

§9:70 Identify Court

§9:71 Name Plaintiff

§9:72 Name Defendant

§9:73 Specify Basis of Venue

§9:74 Include Index Number and Filing Date

§9:75 Special Rule: Consumer Credit Cases

9-3 summoNs, serviCe of ProCess, aNd aPPearaNCe

2. SUMMONS WITH NOTICE

§9:80 Content of Notice

§9:81 Describe Nature of Action

§9:82 Caution: “Naked” Summons Is Defective

§9:83 Defendant Can Waive Defect

3. SUPPLEMENTAL AND THIRD PARTY SUMMONSES

§9:90 The Supplemental Summons

§9:91 The Third Party Summons

4. CIVIL COURT SUMMONS

§9:100 Rules to Aid Pro Se Defendants

§9:101 Provide Court’s Address

§9:102 Provide Attorney’s Address

§9:103 Direction for Answer

B. Amending the Summons

§9:110 At Court’s Discretion

§9:111 No Amendment of Jurisdictional Defects

§9:112 Amendment to Correct Defendant’s Name

§9:113 Requirements for Correcting Defendant’s Name

§9:114 Amendment to Name Doe Defendant

§9:115 Amendment to Correct Plaintiff’s Name

III. Service by Mail

§9:120 Procedure

§9:121 Statement of Service

§9:122 Who May Be Served by Mail

§9:123 Who May Serve by Mail

§9:124 Defendant’s Address

§9:125 Signed Acknowledgment Completes Service

§9:126 Defendant’s Time to Respond

§9:127 Acknowledgement Not Consent to Jurisdiction

§9:128 Refusal to Acknowledge

§9:129 Subsequent Service

IV. Service on Individuals

A. General Points

§9:140 Permissible Methods

§9:141 Same Methods Apply Outside State

§9:142 Foreign Diplomats

B. Personal Delivery

§9:150 Personal Delivery to Defendant Required

§9:151 Exception: Delivery to Another in Defendant’s Presence

§9:152 Delivery to Deceiver

§9:153 What Constitutes Delivery

§9:154 Delivery to Resister