New York Service of Process Rules

Ryan Duffy
Author : Ryan Duffy
8 min read

Like most states, the state of New York has its own specific service of process rules. Lawyers, paralegals, and legal professionals need to have a clear understanding of these rules in order to ensure that service of process and legal papers are served properly.

Without the correct service of process being completed, a lawsuit could ultimately be dismissed. Having a lawsuit dismissed over a technical mistake made by a paralegal or a process server who does not know New York’s service of process rules could be a very costly mistake.

Where to Find NY Service of Process Rules

If one isn’t careful, a legal professional could be tripped up by New York’s service of process rules due to their complexity. Lawyers and paralegals need to study the rules to make sure service of process is correctly done so their lawsuit can move forward.

The service of process rules can be found in the Chapter 8 of the Consolidated Laws of New York. Also, most law firms and law libraries will have a separate book containing all of the rules dealing with civil legal practice called the New York Civil Practice Law and Rules (CPLR). The CPLR is a separate book that can be purchased. However, all of the rules can be found in various places online

Method of Service

When a plaintiff is filing a lawsuit, the plaintiff is responsible for making sure the summons and complaint (commonly referred to as legal process) has to be served in some manner on the named defendant(s) in the lawsuit.

New York’s rules controlling service of process provides many potential methods of service, but it depends upon the status of the defendant. The methods of service may be different depending upon whether the defendant is an individual or a business or organization of some kind, or even the state government or a pseudo-governmental entity

Personal Service

The most common way of effecting service upon a “natural person” is by hand delivery. Section 308 of the consolidated statutes states that personal service upon a person can be made “by delivering the summons within the state to the person to be served.” It’s that simple. Someone of the appropriate age can simply find the individual defendant, walk up to them, and hand them the legal papers.

The person serving the papers can be anyone 18 years or older. However, the danger with using just anyone who’s over 18 years old is that they may not know all of the nuances of New York’s service of process rules. This is why it is important to involve a professional service company that knows what it’s doing and won’t violate any of the rules. By using a professional, this will ensure that your lawsuit is protected and won’t be dismissed.

Substituted Service

There are circumstances where, for many reasons, personal service of process cannot be accomplished. There could be many reasons why a professional process server has not been able to hand deliver the legal papers directly to the individual defendant. Some defendants know that the lawsuit is coming and will take active measures to avoid a process server.

They may go into hiding. The defendant may be traveling and be out of state, and this is important because service of process has to be done within the state boundaries. Another possibility is that the process server just can’t find the defendant for whatever reason. In these instances, New York’s service of process rules allows for other options of service.

The rules state that service can be done “by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business. For example, if a defendant cannot be located, the rules allow you to hand the papers off to an adult at his home or place of business, but the papers must also be mailed via first class mail to the defendant at his home or business. But there are more detailed rules if the papers are mailed to the defendant’s business. The envelope has to be marked as “personal and confidential” and have no indication that the mailing is from an attorney or a law office.

Another form of substituted service is when the parties agree that service of process can be made to a designated agent that the defendant has agreed upon. However, this method of service cannot be used in divorce proceedings.

Nail and Mail

When all of the above methods of service can’t be properly accomplished, the process server can use a rare method commonly referred to as “nail and mail.” This is where the papers are literally nailed or affixed to the door of the defendant’s residence and then the papers are also mailed via first class mail.

Whenever a substituted method of service is used and the papers are also required to be mailed to the defendant, the mailing must take place within 20 days of when the substituted method is used

How to Demonstrate New York Proof Of Service

Whenever service of process is complete, there has to be some kind of proof or evidence that can be shown to the court before the lawsuit can move forward to the next stage.

Usually, the evidence is an affidavit filled out and signed under penalty of perjury of the person that accomplished the service. This affidavit is filed at the courthouse. In most instances, the affidavithas to detail the following:

  • Specify the papers served

  • The person who was served and the date, time, address, or, in the event there is no address, place and manner of service.

  • Set forth facts showing that the service was made by an authorized person and in an authorized manner.

There are other, more detailed provisions for other types of defendants and other types of cases. For example, service of process is different for landlord-tenant litigation, as well as service upon corporations and the government.

Because of these complexities, it is important to use a professional service of process agency tomake sure your legal papers are served correctly and on time.

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Ryan Duffy
Ryan Duffy

Associate Attorney

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