Undisputed Legal Inc. - New York Update
"How to Serve Legal Papers in New York State"This article will provide guidance on How To Serve legal papers in New York State. It is difficult to participate in a lawsuit without the right service. In order for the court to gain jurisdiction over a defendant, the correct serving of process must be completed. New York Process Service may be accomplished in a variety of ways.
LAWS FOR PROCESS SERVICE IN NEW YORK
The CPLR gives guidance on how to serve a natural person with a document. Personal delivery, postal delivery, or delivery via an agent are all options to comply with New York Process Service.
The utmost level of New York Process Service is personal delivery. The individual to whom the New York Process Service is being supplied receives it directly from within the state. As part of actual service, a complaint or summons is handed to the respondent, and this is called personal service. The triad of basic delivery, substituted, and constructive service is provided by personal service.
Deliveries to the respondent's home by an agent or a person authorized to provide such services are referred to as substituted services in this context. Notifications are made by another person rather than via a newspaper or publisher. Two steps are required for substituted service to be completed: the documents must first be given to a person of appropriate age and discretion inside the state. This person may either be at the place of business, at the person's home or customary place of habitation, depending on the situation that New York Process Service calls for. As an alternative, first-class mail may be used to deliver documents to the defendant if identifying and serving the individual is a problem. Each New York Process Service may be completed within twenty days of the other without a problem.
What about the help of someone else? In a divorce case, rule 318 specifies that an agent inside the state may provide service; however, this model of service is not permitted.
Is it possible to find the defendant if they cannot be found at their previous residences? As a result of this, nail and mail services are needed. This is the last effort to save the day after all other options for New York Process Service have failed. In the case of nail and mail, the documents to be served are either fastened to the door of the individual's place of business, residence, or habitation or delivered to them through first-class mail to their last known location. Nail and mail are straightforward upon an individual's residence. Nail and mail service is done only after personal and substituted service has failed and is done inconspicuously insofar as it does not indicate that the matter concerned is a legal matter, even if it is marked ‘personal and confidential. Both processes of nail and mail services are done within twenty days of each other.
PERSONAL DELIVERY IN NEW YORK
A defendant's family members are considered a personal delivery even if the defendant does not receive it personally. According to New York's CPLR 308(2), New York Process Service must be delivered to a person of sufficient age and discretion.' However, this may not be the case in other states.
To serve legal papers such as summons and complaints, a notice of petition and petition, or a motion, a court must give the green light for New York Process Service. The papers may be served by a process server, which may be paid. r The documents may also be served by anybody, such as a friend. However, the person delivering the documents must be at least 18, per the New York Process Service requirements. When documents are served, a party may accompany the person delivering them. There is a limit of five papers a year that may be served by the same person in New York City.
City Council Act in New York City was passed in response to complaints about ‘sewer service' or process servers who illegally discard papers rather than distribute them.
THE PROCESS SERVER INDIVIDUAL LICENSE
Individual licenses for everyone who serves five (5) or more processes in one year, either physically or by substituted service, are now mandatory (leaving service papers with another responsible individual). Process servers in New York City's five boroughs are required to be licensed by the NYC Department of Consumer Affairs in order to do business in the city. If an individual wants to keep their process serving license active, they must pay a USD10,000 surety bond and a USD100,000 surety bond, respectively. In order to get a license or renewal, process servers must also pass a test on relevant laws and legislation. If the process server is an attorney admitted to practice in New York State, they do not need a license. This is the work of an official in a government office at any level: municipal, state, or federal.
New York City process servers are now required to carry and operate an electronic gadget for New York Process Service that captures the GPS location of the person they are serving while delivering a summons or process. According to Commissioner rules, New York City process servers must keep computerized records of their serves and track them using GPS technology (GPS).
NEW YORK PROCESS SERVICE ON THE SECRETARY OF STATE
New York Process Service on the New York Secretary of State as an agent of a corporation or other business entity may be accomplished by serving an authorized person at the New York Department of State's office. New York Process Service is required to be brought to the Customer Service Counter located on the 6th Floor based on the instructions issued by the Secretary of State.
Only ‘process' may be served on the New York Secretary of State in their capacity as agent. ‘Process' in this context refers to the judicial process. All orders, demands, notices, or other papers required or permitted to be personally served on a domestic or foreign entity for the purpose of acquiring jurisdiction of such entity in any action or proceeding, civil or criminal, in this state or the federal courts sitting in, or for, this state. It must be noted that although the New York Process Service has been delineated under the NY Business Corporation Law, New York State law as it has been laid down for New York Process Service by the New York Secretary of State does not prevent other methods or manners of service. It allows for New York Process Service to be rendered via other means as long as it has been cleared through the relevant legislative and statutory requirements.
An approved foreign corporation or limited liability company, a partnership, or an LLC may be served with the process. But this would mean that the New York Secretary of State would have to be physically served with two copies of the procedure. Although these copies may also be served on a person at the office who has been authorized to do so, this is not always the case. Service by mail is not authorized; hence this does not imply that service may be provided in any other manner. Service of process is subject to a statutory charge of USD 40.
According to New York's CPLR, a witness who must appear under oath because of a subpoena must be paid USD 15 each day. This does not rely on whether or not there has been any genuine testimony. The cost of travel to and from the venue of the event is paid at a mileage rate of 23 cents, as is the cost of returning home. However, if individuals are traveling simply inside a city, they will still be responsible for paying the miles.
An extra three dollars per day of pay is paid to witnesses who are not affiliated with or employed by any parties. Regardless of whether they are summoned to testify in court or to present documents, books, and other evidence before a pre-trial hearing, this stays true. Those who are subpoenaed are entitled to an additional ten cents per folio in addition to the money they have previously earned if a transcript of documents is also required.
To serve process on the New York Secretary of State as a statutory agent of an Address Confidentiality Program participant, the Process Server will be required to [A.] determine the program participant intended to serve [B.] complete a Service of Process Cover Sheet [C.] hand-deliver the two copies of the process being served (with the Service of Process Cover Sheet stapled thereto). The USD 40 fee to an authorized person at the New York Department of State's office wherein process must be brought to the Customer Service Counter located on the 6th Floor.
SERVING PAPERS ON GOVERNMENT AGENCIES
Suing a municipality or government agency without understanding the notion of sovereign immunity is a recipe for disaster. A lawsuit against a municipality, county, the state of New York, or any government entity is impossible unless the defendant gives their approval to the filing of the lawsuit. The filing of a Notice of Claim is required in New York.
This notice must be submitted within the specified time frame; otherwise, the case cannot proceed. A 90-day window is more or less standard in this situation. The New York City Comptroller's office is responsible for ensuring that claims against the city are settled in a timely manner. A precondition to holding the City liable for injuries that arise from potentially hazardous circumstances is noticed, as laid down by New York law. A notice of claim must be properly served within 90 days from the date of occurrence of the injury. In the office of the Comptroller, service is required to be via [A.] electronically via the claim system, [B.] personal delivery, or [C.] registered or certified mail. A notice of claim must be filed in writing.
New York does not need a state-wide license, although local process-service regulations are in place throughout the state. To serve in the five boroughs of New York City, one must have a license from the New York City Department of Consumer Affairs. Lawyers and government officials in New York are exempt from this requirement since they serve five or more procedures every year.
The list of Process Serving Agencies, as indicated in the basic individual licensure application and the accompanying pertinent paperwork, must be completed by a New York server who has passed the Process Server exams or by an agency. Individuals must post a $10,000 New York Process Server Bond, while agencies must post a $100,000 New York Process Server Bond in addition to the licensing fee.
A criminal background check and a passport-sized photograph are also required.
HOW TO SERVE A SUBPOENA IN NEW YORK
Subpoenas must be issued under the seal of the court, stating the name of the court and the name of the action, and the clerk must demand each individual to present and testify at the time and location stated. An unsigned and sealed blank subpoena will be sent to the party seeking it, and the party must fill it up before serving.
It is also possible for a subpoena to demand that a specific person produce a specific set of documents or other tangible items. However, a motion to quash or modify this subpoena must be made promptly and in any event before the time specified for compliance; or, if it is deemed unreasonable and oppressive, it may be conditioned upon the advancement of a reasonable explanation by whoever is requesting it.
Generally, a subpoena may be served by anybody over eighteen, as long as they are not a party to the case. The individual identified in the subpoena shall be served with a copy of the subpoena and the fees and mileage authorized by law for one day's attendance, which shall be delivered to that person. Subpoenas issued on behalf of the State, an official, or an agency are exempt from the requirement that costs and travel be paid upfront.
In order for the clerk of the district court to issue subpoenas to the individuals mentioned or described therein, a party's request is a sufficient authorization. Subpoenaed documents may be inspected or copied only if the person to whom the subpoena is addressed files a written objection within ten days of the serving of the subpoena or within the period stated in the subpoena for compliance if such time is less than ten days after New York Process Service. Subpoenaed papers may only be seen and copied under the court order from whence the subpoena was issued if an objection is raised.
The copy must [A.] Include a specific citation since the secretary of state may refuse to accept such service if the proper citation is not included; [B.] be accompanied by a fee of ten dollars. The secretary of state will keep a copy of the legal process received in their office for at least one year after receipt and will make those records available for public inspection during normal business hours.
HOW TO DOMESTICATE AN OUT-OF-STATE SUBPOENA IN NEW YORK
Issuing an out-of-state subpoena pursuant to the Uniform Interstate Deposition and Discovery Act (UIDDA)-New York, the clerk of the court in the county where discovery is to be performed in this state must be presented with a foreign subpoena before it may be requested that a subpoena be issued under this section. Subpoenas issued under this law do not obligate a person to appear in court in New York.
Second, the clerk of a court in this state must swiftly issue a summons to the person to whom the international subpoena is sent, in line with that court's process.
A subpoena issued for a foreign defendant must include: [A.] the terminology appropriate for the subpoena from abroad; and [B.] part of the subpoena, it must include or be accompanied with the names, addresses, and phone numbers of all counsel of record and of any party that is not represented by counsel.
1. New York Civil Practice Law
Rule 318. Designation of Agent for Service. a Person May Be Designated by a Natural Person, Corporation, or Partnership As an Agent For…
Rule 318. Designation of agent for service. A person may be designated by a natural person, corporation, or partnership as an agent for service in writing, executed, and acknowledged in the same manner as a deed, with the consent of the agent endorsed thereon. The writing shall be filed in the office of the clerk of the county in which the principal to be served resides or has its principal office. The designation shall remain in effect for three years from such filing unless it has been revoked by the filing of revocation or by the death, judicial declaration of incompetency, or legal termination of the agent or principal.
2. As stated by the bill's author, Councilman Daniel Garodnick, New Yorkers will have an equal chance to defend themselves against charges if industry standards and technologies are strengthened and adopted.
3. One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231
4. Division of Corporations, State Records and Uniform Commercial Code, NYS Dept. of State, https://www.dos.ny.gov/corps/faq_service_of_process.page.asp (last visited Jan 18, 2021)
5. Service of process is accepted pursuant to the following sections of New York State Law: Sections 306, 306-A, and 307 of the Business Corporation Law; Sections 306 and 307 of the Not-for-Profit Corporation Law; Sections 301-A, 303, and 304 of the Limited Liability Company Law; Sections 121-104-A, 121-109, 121-1505, and 121-1506 of the Partnership Law.
6. See §102(a)(11) of the Business Corporation Law, §102(a)(12) of the Not-for-Profit Corporation Law, §102(x) of the Limited Liability Company Law, §121-101(o) of the Partnership Law.
7. New York Consolidated Laws, Business Corporation Law – BSC § 306. Service of process
(a) Service of process on a registered agent may be made in the manner provided by law for the service of a summons as if the registered agent was a defendant.
(b)(1) Service of process on the secretary of state as an agent of a domestic or authorized foreign corporation shall be made by personally delivering to and leaving with the secretary of state or a deputy or with any person authorized by the secretary of state to receive such service, at the office of the department of state in the city of Albany, duplicate copies of the such process together with the statutory fee, which fee shall be a taxable disbursement. Service of process on such corporation shall be complete when the secretary of state is so served. The secretary of state shall promptly send one of such copies by certified mail, return receipt requested, to such corporation, at the post office address, on file in the department of state specified for the purpose. Suppose a domestic or authorized foreign corporation has no such address on file in the department of state. In that case, the secretary of state shall so mail such copy, in the case of a domestic corporation, in care of any director named in its certificate of incorporation at the director's address stated therein or, in the case of an authorized foreign corporation, to the such corporation at the address of its office within this state on file in the department.
(2) An additional service of the summons may be made pursuant to paragraph four of subdivision (f) of section thirty-two hundred fifteen of the civil practice law and rules.
(c) If an action or special proceeding is instituted in a court of limited jurisdiction, service of process may be made in the manner provided in this section if the office of the domestic or foreign corporation is within the territorial jurisdiction of the court.
(d) Nothing in this section shall affect the right to serve process in any other manner permitted by law.
8. it is necessary to Check ‘other' in section 3 of the cover sheet and indicate that service is pursuant to Executive Law §108
9. One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231
10. New York City Administrative Code 7-201(c)(2)
No civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any street…[or] sidewalk…being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice, or where there was the previous injury to person or property as a result of the existence of the defective, unsafe, dangerous or obstructed condition, and written notice thereof was given to a city agency, or there was written acknowledgment from the city of the defective, unsafe, dangerous or obstructed condition. There was a failure or neglect within fifteen days after the receipt of such notice to repair or remove the defect, danger, or obstruction complained of, or the place otherwise made reasonably safe.'
11. Pursuant to the New York State General Municipal Law § 50-e