Commencement Process Flashcards
How is an action validlycommenced?
1) “File process” w/ the County Clerk (if filing action for Sup. Ct.) w/in the relevant SOL window
Process = (i) summons and (ii) notice OR (i) summons and (iii) complaint
2) Pay fee for the purchase of an index number
3) Serve process on the ∆ w/in 120 days after filing w/ the county clerk
NOTE: Ct. has discretion to…
(i) extend beyond 120 days if π makes an ex parte motion & makes a showing of good cause OR interest of justice (flexible)
If ∆ wants to challenge timeliness, must raise untimely service in a Motion to Dismiss,but court can still grant π an extension & apply it retroactively (NOTE: if ∆ fails to raise the defense of untimely service, it is waived)
(ii) permit the correction of a mistake in the filing procedure, PROVIDED (a) the ∆ suffers no prejudice; (b) the filing occurs w/in SOL; AND (c) the filing fee is paid
What are the twoforms of process?
1) Summons & Complaint
Summons = notifies ∆ that he is being sued in a particular court
Complaint = π’s pleading, which spells out elements of c/a
2) Summons & Notice
Notice must state… (i) brief stmt of nature of action; (ii) nature of relief sought (damages, equitable remedy); AND
(iii) if damages are sought, the amount of damages (UNLESS personal injuryOR wrongful death – then CANNOT state)
NOTE:If no complaint or notice attached (a “naked summons”), then defect in pjx & action can be dismissed (PROVIDED the ∆ files a timely jx objection)
What are requirementsfor serving process?
1) Server 18 or older
2) Server cannot be a party to the action (∆)
3) Served any day EXCEPT Sunday, and Saturday (provided ∆ is a Saturday Sabbath observer and ∆ knows it)
Process can be served on a holiday (provided it doesn’t fall on a Sunday)
4) Served on EACH ∆ in the action
NOTE: Actual notice is IRRELEVANT to a determination of whether π has complied with the formalities for proper service of process (i.e. cts strictly enforce these procedures)
What is the “leave and mail” method of serving process?
W/in in 120 days from filing process, π must…
1) DELIVER process(via process server)to person of suitable age & discretion (NOTE: does not mean 18 necessarily) at ∆’s
(i) actual dwelling place OR (ii) place of business; AND
2) MAIL a copy by regular mail to ∆ at ∆’s actual place of businessOR at his last known residencew/in 20 days; AND
3) File proof of service
Proof of service - Affidavit by process server describing the details of service (e.g. date, time, place, desc. of person served, due diligence)
If π fails to file proof of service, it’s NOT a jx defect (and a grounds for dismissal); the consequence = postponing ∆’s to respond
The filing of proof of service need NOT take place w/in the 120 day pd (even though other steps NEED be)
∆ is personally served = No proof of service needed
COMPLETION of service - (which starts clock on ∆’s response time) 10 days after proof of service is filed
NOTE: if the action has more than one ∆, EACH ∆ must be served with his own set of process
What is the “affix and mail” method of serving process?
NOTE: This is also known as “nail and mail”
W/in in 120 days from filing process, π must…
1) AFFIX (e.g. via taping) process (via process server) to the door of ∆’s actual dwelling place OR actual place of business;
2) MAIL a copy by regular mail to ∆ at ∆’s actual place of businessOR last known residence w/in 20 days;
3) Must have exercised DUE DILIGENCE (by making attempts to serve ∆ directlyOR by delivery to person of suitable age/discretion); AND
“Sufficient due diligence” = Fact-specific inquiry, BUT look for several attempts to deliveron different days of the week and at different times of the day
4) File proof of service
When is service “complete” with thepersonal delivery method of serving process?
Upon server’s tender of summons directly to ∆
∆ refuses? Server can leave process w/in ∆’s immediate vicinity
NOTE: If action has more than one ∆, EACH ∆ must be served with his own set of process
What should π do if a traditional method of serving process is not available?
Expedient Service: Make ex parte MOTION to the ct for an ORDER allowing an improvised, expedient method
Order = NECESSARY if π wants to use an improvised service of process
Reasonable alternatives e.gs: service on ∆’s liability insurer, a family member or business associate, or service by email
NOTE: If action has more than one ∆, EACH ∆ must be served with his own set of process
What is process for serving process on an infant?
1) Traditional methods (e.g. physical delivery; leave and mail; nail and mail; etc)of serving process
2) Infant ∆’s name goes on the summons, BUT process must be served on any of these adults:
(i) a parent of the infant ∆
(ii) a guardian of the infant ∆
(iii) any person having legal custody of the infant ∆
(iv) if infant is married, upon an adult spouse with whom the infant lives
NOTE: If infant ∆ is ≥ 14 yrs old, process must be served on an eligible adult AND the infant
NOTE: If action has more than one ∆, EACH ∆ (or adult rep) must be served with his own set of process
What is process for serving process on mentally incapacitated person?
1) Traditional methods (e.g. physical delivery; leave and mail; nail and mail; etc) of serving process
2a) If ∆ HAS a court-appointed guardian, serve:
(i) incapacitated ∆ AND
(ii) guardian (two sets of process necessary!)
(2b) If ∆ DOES NOT HAVE court-appointed guardian, serve:
(i) incapacitated ∆
Court will later appoint a guardian ad litem
What is the process for serving process a ∆ who’s OUTSIDE NY?
1) Same as used w/in NY (assuming that there is a pjx basis for out-of-state service); rules in jx where process is served are IRRELEVANT
2) Who can serve?
(i) any NY resident who is ≥ 18 yrs old
(ii) anyone authorized to serve process by the law of the jx where service is made
(iii) any attorney who is licensed in the jx where services is made
What are the TWO methods for serving process on corporate∆s?
1) Personal delivery to:
(i) officer of the corporation
(ii) director of the corporation
(iii) designated agent
(iv) managing agent (employee who has supervisory power)
NOTE: Can be served to any of these corporate representatives ANYWHERE IN THE U.S., if there is a basis of pjx over the corporation
2) Service on NY Sec. of State (designated agent)
(a) ∆ is a (i) domestic corp. (incorp’d in NY);OR (ii)a foreign corp. authorized to do business in NY (i.e. licensed)?
Process: π must personally deliver 2 copies to NY Sec. of State
(b) ∆ an unlicensed foreign corp.
Process: π must personally deliver1 copy to Sec. AND mail 1 to corp. ∆ by CERTIFIED mail (return receipt requested)
NOTE: STILL need a valid basis of pjx to serve corporate ∆
What is the method to service process by 1st class mail plus acknowledgment?
1) Mail process to ∆ by 1st class mail, enclosing:
(i) 2 copies of statutory acknowledgement form; AND
(ii) a return envelope, postage prepaid, addressed to sender (π)
2) Service is effective ONLY IF ∆ signs 1 form & returns it to π w/in 30 days(complete upon sending signed form)
If ∆DOES NOT return it, service is not effective and π MUST serve process some other way BUT∆ must pay for expenses
NOTE: Method can be used REGARDLESS of whether ∆ is within or outside NY
Method CANNOT be used on infantsORinsane (i.e. MUST use traditional method)
∆’s return of form is NOT a concession that court has pjx (∆ can still raise jx issues in the answer)
What are the traditional AND non-traditional methods of serving process on a person ∆?
1) Traditional…
(i) personal delivery to ∆
(ii) leave and mail
(iii) “nail and mail” (affixing and mailing)
(iv) expedient service (court improvised)
(v) service on ∆’s designated agent
2) Non-traditional…
1st class mail PLUS acknowledgment
