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New York Practice > Commencing an Action & Service of Process > Flashcards

Commencing an Action & Service of Process Flashcards

1
Q

Who do you file process with? and what happens when you file?

A
  • file with the clerk of the court, aka the County Clerk
  • filing must be accompanied by payment of a fee for the purchase of an index number
  • filing of process is valid commencement (including interposes SoL) provided it is followed by proper service of process w/in 120 days of filing
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2
Q

If P has trouble serving w/in 120 days of filing, what can be done?

A

The ct has discretion, upon Ps MOTION, to extend the time for service if P can demonstrate EITHER:
1- a showing of good cause, OR
2- interests of justice
justifies an extension.

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3
Q

How does D challenge Ps untimely service?

A

D MUST raise the untimely service by motion to dismiss or answer. If D fails to raise the defense of untimely service it is waived.

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4
Q

Court’s Discretion to fix mistake in filing procedure

A

f π 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 π’s motion, to permit correction of the mistake provided Δ suffers no prejudice, the filing occurs within the S/L, and the filing fee is paid

  • most often used when there was a mistake in the filing fee amount paid
  • doesn’t apply to untimely filings
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5
Q

Summons & Complaint

A

The summons advises Δ that π is suing Δ in a particular court. The complaint is π’s pleading, which specifies the transaction or occurrence that is the subject matter of the action and spells out the essential elements of π ‘s cause of action

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6
Q

Summons w/ Notice

A
  • When the summons is not accompanied by a complaint, it must have sufficient “notice” inscribed on the face of the summons or on a one-page attachment
  • Notice consists of: (i) brief statement of the nature of the action; (ii) prayer for relief; (iii) amount of money damages sought EXCEPT in PI or wrongful death action when you MUST NOT specify amount sought
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7
Q

What must be in the summons

A
  • parties
  • court
  • indicate D is being sued
  • say D has 20 or 30 days to answer the complaint (20 days if service by personal delivery, 30 if by different means in NY or by any method outside NY)
  • warning that failure to answer could result in default
  • name/address/phone of P attorney
  • index number
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8
Q

Naked Summons

A

Defect in Personal Jurisdiction

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9
Q

When can you serve?

A
  • Void if served on Sunday—in all circumstances, even if made in a jurisdiction that permits Sunday service
  • Service on a Saturday is a misdeameanor if made “maliciously” on one who actually celebrates Saturday as the Sabbath, and caselaw permits the service to be invalidated on motion of that showing is made
  • religious holiday/holy day is allowed unless it is shown that P chose that day maliciously
  • service on national holidays allowed
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10
Q

Who can serve process? (A R N)

A
  • 18
  • resident of NY
  • Non-party
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11
Q

Service on Natural Persons:

Personal Delivery to Defendant

A
  • complete upon process server’s tender of summons directly to D
  • if D refuses to accept the delivery of process you can leave it in his immediate vicinity
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12
Q

Service on Natural Persons:

Leave & Mail

A 
1- Process server may deliver to a person of suitable age in discretion at: (i) Ds ACTUAL dwelling; OR (ii) Ds ACTUAL place of business
and then 
2- mailing a copy, 1st class regular mail, to D at D's actual place of business or last known residence.
  • “personal and confidential” envelope w/ no indication that its from an attorney
  • two steps must be performed w/in 20 days of each other in no particular order
  • both steps must be performed w/in 120 days from filing

PROOF

  • must be filed w/ the clerk w/in 20 days of last step & must ID the person of suitable age and the date/time/place
  • SERVICE IS COMPLETE 10 DAYS AFTER FILING PROOF
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13
Q

Service on Natural Persons:

Affixing & Mailing (“Nail and mail”)

A

YOU MUST FIRST ATTEMPT PERSONAL SERVICE & LEAVE AND MAIL SERVICE!! [standard = due diligence, a fact-specific inquiry; usually if you have at least 3 failed and varied attempts you will have due diligence)

  • Affixing = non-destructive manner of affixing
  • server may affix process to the door of Ds actual dwelling place or actual place of business PLUS mail a copy by regular mail to D at Ds actual place of business or last known residence
  • both steps must be performed w/in 20 days of each other and w/in 120 days of filing

PROOF

  • filed w/ clerk w/in 20 days of last step & must ID due diligence
  • SERVICE IS COMPLETE 10 DAYS AFTER FILING PROOF
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14
Q

Is it a jurisdictional defect if P fails to file proof of service for leave & mail or nail & mail?

A

NO– the only consequence is that it postpones the defendants time to respond b/c Ds response time runs from the date on which service is complete & service is complete 10 days after filing proof of service.

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15
Q

Service on Natural Persons:

Service as the court directs

A

If personal service, leave & mail, and nail & mail are not practicable, P can make an ex parte motion to the court for an order allowing an improvised EXPEDIENT method (aka some reasonable alternative appropriate in the circumstances)

  • ex: service on Ds insurer; service on a family member or co-worker; e-mail; publication
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16
Q

Service on Natural Persons:

Service on Agent Specifically Designated by D to Receive Process

A

.

17
Q

Service on an Infant Defendant

A 
-Ds name goes on the summons but process must be served on any one of the following adults:
1- parent
2- guardian
3- any person w/ legal custody
4- adult spouse w/ whom infant resides
  • If infant D is 14 or older, process must be served to an eligible adult AND the infant (2 sets of process necessary!!)
  • When serving the adult, or the adult-plus-infant, any of the traditional methods may be used (personal, leave and mail, nail and mail, court discretion, agent)
18
Q

Service on a Mentally Incapacitated Person

A

If they have a COURT-APPOINTED GUARDIAN –> serve the guardian AND the incapacitated person (2 sets!!)

If Δ is mentally incompetent but no judicial proceeding has been brought for the appointment of a guardian, Δ is served in same manner as any other Δ. Court will later appoint guardian ad litem (guardian for purpose of the pending litigation)

19
Q

Service Outside NY (assuming basis for out-of-state service)– who may serve and how may it be done?

A
  • any NY resident who is at least 18 & a non-party
  • any person authorized to serve process by the law of the state of service
  • any attorney licensed in the state of service
  • by any method capable of use in NY
20
Q

Service on Corporations:

Personal Delivery

A

To any one of the following corporate reps:
1- officer
2- director
3- designated agent
4- manager (anyone w/ supervisory responsibility)

-If there’s 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

21
Q

Service on Corporation:

NY Secretary of State

A
  • For a domestic corporation (incorporated in NY), OR a foreign corporation authorized to do business in NY (A/K/A a licensed corporation): Personally deliver TWO COPIES OF PROCESS to the Office of the NY Secretary of State. (Secretary, who is the designated agent as per certificate of incorporation or certificate of doing business, will mail one copy by certified mail to corporation at the address on file in Secretary’s office. Service of process is COMPLETE upon delivery of process to Secretary of State, regardless of when corporation receives it.)
  • For an UNLICENSED FOREIGN CORP personally deliver ONE copy to the NY Sec PLUS mail one copy to the corp by certified mail, return receipt requested
22
Q

Non-Traditional Method-

Service by First-Class Mail PLUS Acknowledgment

A
  • mail process to D by first class mail, enclosing 2 copies of a statutory acknowledgment form, plus a return enveloped w/ prepaid postage addressed to sender.
  • Service effective ONLY if D signs and returns one of the acknowledgment forms to P w/in 30 days. D is not required to do this, but if he doesn’t he will have to pay the cost that P ends up spending on a process server.
  • Service is complete on the date the signed acknowledgment form is mailed or personally delivered to the sender
  • can be used regardless of whether D is w/in or outside NY
  • can be used on all types of Ds (people & corps) EXCEPT infants and mentally incapacitated w/ guardians.

NOTE: where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period (2103(b)(2))

23
Q

Service in Matrimonial Actions

A

SERVICE IN MATRIMONIAL ACTION MUST BE MADEBY PERSONAL DELIVERY UNLESS THE COURT AUTHORIZES SUBSTITUTE SERVICE.

New York Practice (14 decks)

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