In the state of New York, process servers are
required to have license to serve in specific counties. However, in general, there is not a
statewide license. New York City's five
Burroughs, New York requires all process servers within each of the 5 boroughs
(Manhattan, Brooklyn, Bronx, Staten Island, and Queens) to be licensed through
the New York City Department of Consumer Affairs. There is no insurance,
bonding, educational, or testing requirement to become a process server. Suffolk County has a local ordinance
requiring all process servers who serve pleadings in Suffolk County to be
licensed. This legislation was passed on July 1, 2002. Thus, now all process
server applicants must carry E&O coverage with limits of $250,000, and take
one full day of classes on process serving laws, which is followed by a written
exam. The exam must be taken and passed
in order to obtain a process server license for the specific New York counties.
Process
servers cannot serve papers on Sunday.
On Saturday, papers cannot be served upon anyone who keeps Saturday as a
holy time. In addition, and most
recently, all New York pleadings must be filed with a county court and have an
index number before the pleadings are served to the defendant.
Table of Contents
Rule 305. Summons; supplemental
summons, amendment.
Rule 306. Proof of service.
Rule 306-a Index number in an
action commenced in supreme or county court.
Rule 306-b
Rule 307. Personal service upon
the state.
Rule 308. Personal service upon
a natural person.
Rule 309. Personal service upon
an infant, incompetent or conservatee.
Rule 310. Personal service upon
a partnership.
Rule 310-a. Personal service
upon a limited partnership.
Rule 311. Personal service upon a
corporation or governmental subdivision.
Rule 311-a. Personal service on
limited liability companies.
Rule 312-a. Personal service by
mail.
A. STATEMENT OF SERVICE BY MAIL
B. ACKNOWLEDGEMENT OF RECEIPT OF SUMMONS AND COMPLAINT OR
SUMMONS AND NOTICE OR NOTICE OF PETITION AND PETITION
Rule 313. Service without the
state giving personal jurisdiction.
Rule 314. Service without the
state not giving personal jurisdiction in certain actions.
Rule 315. Service by publication
authorized.
Rule 316. Service by
publication.
Rule 317. Defense by person to
whom summons not personally delivered.
Rule 318. Designation of agent
for service.
2103 N.Y.C.P.L.R. Service of
papers.
Article 23. Subpoenas, Oaths and
Affirmations
§2301 N.Y.C.P.L.R. Scope of
subpoena.
§2302 N.Y.C.P.L.R. Authority to
issue.
§2303 N.Y.C.P.L.R. Service of
subpoena; payment of fees in advance.
§ 2306 N.Y.C.P.L.R. Hospital
records; medical records of department or bureau of a municipal corporation or
of the state.
§ 2307 N.Y.C.P.L.R. Books,
papers and other things of a library, department or bureau of a municipal
corporation or of the state.
§ 2308 N.Y.C.P.L.R. Disobedience
of subpoena.
§ 11 Gen. Bus. Serving civil
process on Sunday.
§ 13 Gen. Bus. Maliciously
serving process on Saturday on person who keeps Saturday as holy time.
§ 89-t Gen. Bus. Definitions.
§ 89-u Gen. Bus. Process server
records, penalties.
§ 89-v Gen. Bus. Enforcement by
attorney general.
§ 89-bb Gen. Bus. Definitions.
For the purposes of this article:
§ 89-cc Gen. Bus. Process server
records.
§ 89-dd Gen. Bus. Process
serving agency records.
§ 89-ee Gen. Bus. Responsibility
of process serving agency and process servers.
§ 89-ff Gen. Bus. Affidavits of
service.
§ 89-gg Gen. Bus. Availability
of records.
§ 89-hh Gen. Bus. Enforcement by
attorney general.
§ 89-ii Gen. Bus. Preservation
of private remedies.
§ 89-jj Gen. Bus. Preemption.
§ 89-kk Gen. Bus. Severability.
§ 89-ll Gen. Bus. Applicability.
§ 20-404 Definition.
§ 20-405 Exceptions.
§ 20-406 Application;
fingerprinting.
§ 20-407 Fee; term.
§ 20-408 Rules and regulations.
§ 20-409 Issuance, renewal,
suspension and revocation of a license.
a.
Summons;
supplemental summons. A summons shall specify the basis of the venue designated
and if based upon the residence of the plaintiff it shall specify the
plaintiffs address, and also shall bear the index number assigned and the date
of filing with the clerk of the court. A third-party summons shall also specify
the date of filing of the third-party summons with the clerk of the court. The
summons in an action arising out of a consumer credit transaction shall
prominently display at the top of the summons the words "consumer credit
transaction" and, where a purchaser, borrower or debtor is a defendant,
shall specify the county of residence of a defendant, if one resides within the
state, and the county where the consumer credit transaction took place, if it
is within the state. Where, upon order of the court or by stipulation of all
parties or as of right pursuant to section 1003, a new party is joined in the
action and the joinder is not made upon the new party's motion, a supplemental
summons specifying the pleading which the new party must answer shall be filed
with the clerk of the court and served upon such party.
b.
Summons and
notice. If the complaint is not served with the summons, the summons shall
contain or have attached thereto a notice stating the nature of the action and
the relief sought, and, except in an action for medical malpractice, the sum of
money for which judgment may be taken in case of default.
c.
Amendment. At any
time, in its discretion and upon such terms as it deems just, the court may
allow any summons or proof of service of a summons to be amended, if a
substantial right of a party against whom the summons issued is not prejudiced.
a.
Generally. Proof
of service shall 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, and set forth facts showing that the service was made by an authorized
person and in an authorized manner.
b.
Personal service.
Whenever service is made pursuant to this article by delivery of the summons to
an individual, proof of service shall also include, in addition to any other
requirement, a description of the person to whom it was so delivered,
including, but not limited to, sex, color of skin, hair color, approximate age,
approximate weight and height, and other identifying features.
c.
Other service.
Where service is made pursuant to subdivision four of section three hundred
eight of this chapter, proof of service shall also specify the dates, addresses
and the times of attempted service pursuant to subdivisions one, two or three
of such section.
d.
Form. Proof of
service shall be in the form of a certificate if the service is made by a
sheriff or other authorized public officer, in the form of an affidavit if made
by any other person, or in the form of a signed acknowledgement of receipt of a
summons and complaint, or summons and notice or notice of petition as provided
for in section 312-a of this article.
e.
Admission of
service. A writing admitting service by the person to be served is adequate
proof of service.
a.
Upon filing the
summons and complaint or summons with notice in an action commenced in supreme
or county court, an index number shall be assigned and the fee required by
subdivision (a) of section eight thousand eighteen of this chapter shall be
paid. Upon the filing of a summons and complaint against a person not already a
party, as permitted under section one thousand seven or rule one thousand
eleven of this chapter, the fee required by subdivision (a) of section eight thousand
eighteen of this chapter shall be paid, but a separate index number shall not
be assigned.
b.
If a person other
than the plaintiff or third-party plaintiff who served the summons or
third-party summons obtains the index number and pays the fee therefore, the
clerk shall issue an order directing the plaintiff or the third-party plaintiff
to pay such person the amount of the fee paid. If such fee is not paid within
thirty days of service of the order with notice of entry, the person who paid
the fee, in addition to any other remedies available at law, may apply to the
clerk for an order dismissing the action without prejudice.
Service of the
summons and complaint, summons with notice, or of the third-party summons and complaint.
Service of the summons and complaint, summons with notice, or of the
third-party summons and complaint shall be made within one hundred twenty days
after their filing, provided that in an action or proceeding where the
applicable statute of limitations is four months or less, service shall be made
not later than fifteen days after the date on which the applicable statute of
limitations expires. If service is not made upon a defendant within the time
provided in this section, the court, upon motion, shall dismiss the action
without prejudice as to that defendant, or upon good cause shown or in the
interest of justice, extend the time for service.
1.
Personal service
upon the state shall be made by delivering the summons to an assistant
attorney-general at an office of the attorney-general or to the
attorney-general within the state.
2.
Personal service
on a state officer sued solely in an official capacity or state agency, which
shall be required to obtain personal jurisdiction over such an officer or
agency, shall be made by (1) delivering the summons to such officer or to the
chief executive officer of such agency or to a person designated by such chief
executive officer to receive service, or (2) by mailing the summons by
certified mail, return receipt requested, to such officer or to the chief
executive officer of such agency, and by personal service upon the state in the
manner provided by subdivision one of this section. Service by certified mail
shall not be complete until the summons is received in a principal office of
the agency and until personal service upon the state in the manner provided by
subdivision one of this section is completed. For purposes of this subdivision,
the term "principal office of the agency" shall mean the location at
which the office of the chief executive officer of the agency is generally
located. Service by certified mail shall not be effective unless the front of
the envelope bears the legend "URGENT LEGAL MAIL" in capital letters.
The chief executive officer of every such agency shall designate at least one
person, in addition to himself or herself, to accept personal service on behalf
of the agency. For purposes of this subdivision the term state agency shall be
deemed to refer to any agency, board, bureau, commission, division, tribunal or
other entity which constitutes the state for purposes of service under
subdivision one of this section.
Personal service
upon a natural person shall be made by any of the following methods:
1.
by delivering the
summons within the state to the person to be served; or
2.
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 in an
envelope bearing the legend "personal and confidential" and not
indicating on the outside thereof, by return address or otherwise, that the
communication is from an attorney or concerns an action against the person to
be served, such delivery and mailing to be effected within twenty days of each
other; proof of such service shall be filed with the clerk of the court
designated in the summons within twenty days of either such delivery or
mailing, whichever is effected later; service shall be complete ten days after
such filing; proof of service shall identify such person of suitable age and
discretion and state the date, time and place of service, except in matrimonial
actions where service hereunder may be made pursuant to an order made in
accordance with the provisions of subdivision a of section two hundred
thirty-two of the domestic relations law; or
3.
by delivering the
summons within the state to the agent for service of the person to be served as
designated under rule 318, except in matrimonial actions where service
hereunder may be made pursuant to an order made in accordance with the
provisions of subdivision a of section two hundred thirty-two of the domestic
relations law;
4.
where service
under paragraphs one and two cannot be made with due diligence, by affixing the
summons to the door of either the actual place of business, dwelling place or
usual place of abode within the state of the person to be served and by either
mailing the summons to such person 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 in an envelope bearing the legend "personal
and confidential" and not indicating on the outside thereof, by return
address or otherwise, that the communication is from an attorney or concerns an
action against the person to be served, such affixing and mailing to be
effected within twenty days of each other; proof of such service shall be filed
with the clerk of the court designated in the summons within twenty days of
either such affixing or mailing, whichever is effected later; service shall be
complete ten days after such filing, except in matrimonial actions where
service hereunder may be made pursuant to an order made in accordance with the
provisions of subdivision a of section two hundred thirty-two of the domestic
relations law;
5.
in such manner as
the court, upon motion without notice, directs, if service is impracticable
under paragraphs one, two and four of this section.
6.
For purposes of
this section, "actual place of business" shall include any location
that the defendant, through regular solicitation or advertisement, has held out
as its place of business.
a.
Upon an infant.
Personal service upon an infant shall be made by personally serving the summons
within the state upon a parent or any guardian or any person having legal
custody or, if the infant is married, upon an adult spouse with whom the infant
resides, or, if none are within the state, upon any other person with whom he
resides, or by whom he is employed. If the infant is of the age of fourteen
years or over, the summons shall also be personally served upon him within the
state.
b.
Upon a person
judicially declared to be incompetent. Personal service upon a person
judicially declared to be incompetent to manage his affairs and for whom a
committee has been appointed shall be made by personally serving the summons
within the state upon the committee and upon the incompetent, but the court may
dispense with service upon the incompetent.
c.
Upon a
conservatee. Personal service on a person for whom a conservator has been
appointed shall be made by personally serving the summons within the state upon
the conservator and upon the conservatee, but the court may dispense with
service upon the conservatee.
a.
Personal service upon
persons conducting a business as a partnership may be made by personally
serving the summons upon any one of them.
b.
Personal service
upon said partnership may also be made within the state by delivering the
summons to the managing or general agent of the partnership or the person in
charge of the office of the partnership within the state at such office and by
either mailing the summons to the partner thereof intended to be served by
first class mail to his last known residence or to the place of business of the
partnership. Proof of such service shall be filed within twenty days with the
clerk of the court designated in the summons; service shall be complete ten
days after such filing; proof of service shall identify the person to whom the
summons was so delivered and state the date, time of day and place of
service.
c.
Where service
under subdivisions (a) and (b) of this section cannot be made with due
diligence, it may be made by affixing a copy of the summons to the door of the
actual place of business of the partnership within the state and by either
mailing the summons by first class mail to the partner intended to be so served
to such person to his last known residence or to said person at the office of
said partnership within the state. Proof of such service shall be filed within
twenty days thereafter with the clerk of the court designated in the summons;
service shall be complete ten days after filing.
d.
Personal service
on such partnership may also be made by delivering the summons to any other agent
or employee of the partnership authorized by appointment to receive service; or
to any other person designated by the partnership to receive process in
writing, filed in the office of the clerk of the county wherein such
partnership is located.
e.
If service is
impracticable under subdivisions (a), (b) and (c) of this section, it may be
made in such manner as the court, upon motion without notice directs.
a.
Personal service
upon any domestic or foreign limited partnership shall be made by delivering a
copy personally to any managing or general agent or general partner of the
limited partnership in this state, to any other agent or employee of the
limited partnership authorized by appointment to receive service or to any
other person designated by the limited partnership to receive process, in the
manner provided by law for service of summons, as if such person was the
defendant. Personal service upon a limited partnership subject to the provisions
of article eight-A of the partnership law may also be made pursuant to section
121-109 of such law.
b.
If service is
impracticable under subdivision (a) of this section, it may be made in such
manner as the court, upon motion without notice, directs.
c.
A limited
liability partnership may also be served pursuant to section 121-1505 of the
partnership law.
a.
Personal service
upon a corporation or governmental subdivision shall be made by delivering the
summons as follows:
1.
upon any domestic
or foreign corporation, to an officer, director, managing or general agent, or
cashier or assistant cashier or to any other agent authorized by appointment or
by law to receive service. A business corporation may also be served pursuant
to section three hundred six or three hundred seven of the business corporation
law. A not-for-profit corporation may also be served pursuant to section three
hundred six or three hundred seven of the not-for-profit corporation law;
2.
upon the city of
New York, to the corporation counsel or to any person designated to receive
process in a writing filed in the office of the clerk of New York county;
3.
upon any other
city, to the mayor, comptroller, treasurer, counsel or clerk; or, if the city
lacks such officers, to an officer performing a corresponding function under
another name;
4.
upon a county, to
the chair or clerk of the board of supervisors, clerk, attorney or treasurer;
5.
upon a town, to
the supervisor or the clerk;
6.
upon a village, to
the mayor, clerk, or any trustee;
7.
upon a school
district, to a school officer, as defined in the education law; and
8.
upon a park,
sewage or other district, to the clerk, any trustee or any member of the board.
b.
If service upon a
domestic or foreign corporation within the one hundred twenty days allowed by
section three hundred six-b of this article is impracticable under paragraph
one of subdivision (a) of this section or any other law, service upon the
corporation may be made in such manner, and proof of service may take such
form, as the court, upon motion without notice, directs.
a.
Service of process
on any domestic or foreign limited liability company shall be made by
delivering a copy personally to (i) any member of the limited liability company
in this state, if the management of the limited liability company is vested in
its members, (ii) any manager of the limited liability company in this state,
if the management of the limited liability company is vested in one or more
managers, (iii) to any other agent authorized by appointment to receive
process, or (iv) to any other person designated by the limited liability
company to receive process, in the manner provided by law for service of a
summons as if such person was a defendant. Service of process upon a limited
liability company may also be made pursuant to article three of the limited
liability company law.
b.
If service is
impracticable under subdivision (a) of this section, it may be made in such
manner as the court, upon motion without notice, directs.
a.
Service. As an
alternative to the methods of personal service authorized by section 307, 308,
310, 311 or 312 of this article, a summons and complaint, or summons and
notice, or notice of petition and petition may be served by the plaintiff or
any other person by mailing to the person or entity to be served, by first
class mail, postage prepaid, a copy of the summons and complaint, or summons
and notice or notice of petition and petition, together with two copies of a
statement of service by mail and acknowledgement of receipt in the form set
forth in subdivision (d) of this section, with a return envelope, postage
prepaid, addressed to the sender.
b.
Completion of
service and time to answer.
1.
The defendant, an
authorized employee of the defendant, defendant's attorney or an employee of
the attorney must complete the acknowledgement of receipt and mail or deliver
one copy of it within thirty (30) days from the date of receipt. Service is
complete on the date the signed acknowledgement of receipt is mailed or
delivered to the sender. The signed acknowledgement of receipt shall constitute
proof of service.
2.
Where a complaint
or petition is served with the summons or notice of petition, the defendant
shall serve an answer within twenty (20) days after the date the signed
acknowledgement of receipt is mailed or delivered to the sender.
c.
Affirmation. The
acknowledgement of receipt of service shall be subscribed and affirmed as true
under penalties of perjury and shall have the same force and effect as an
affidavit.
d.
Form. The
statement of service by mail and the acknowledgement of receipt of such service
shall be in substantially the following form:
Statement of
Service by Mail and Acknowledgement of Receipt by Mail of Summons and Complaint
or Summons and Notice or Notice of Petition and Petition
To: (Insert the
name and address of the person or entity to be served.)The enclosed summons and
complaint, or summons and notice, or notice of petition and petition (strike
out inapplicable terms) are served pursuant to section 312-a of the Civil
Practice Law and Rules. To avoid being charged with the expense of service upon
you, you must sign, date and complete the acknowledgement part of this form and
mail or deliver one copy of the completed form to the sender within thirty (30)
days from the date you receive it. You should keep a copy for your records or
your attorney. If you wish to consult an attorney, you should do so as soon as
possible before the thirty (30) days expire. If you do not complete and return
the form to the sender within thirty (30) days, you (or the party on whose
behalf you are being served) will be required to pay expenses incurred in
serving the summons and complaint, or summons and notice, or notice of petition
and petition in any other manner permitted by law, and the cost of such service
as permitted by law will be entered as a judgment against you. If you have
received a complaint or petition with this statement, the return of this
statement and acknowledgement does not relieve you of the necessity to answer
the complaint or petition. The time to answer expires twenty (20) days after
the day you mail or deliver this form to the sender. If you wish to consult
with an attorney, you should do so as soon as possible before the twenty (20)
days expire. If you are served on behalf of a corporation, unincorporated
association, partnership or other entity, you must indicate under your
signature your relationship to the entity. If you are served on behalf of
another person and you are authorized to receive process, you must indicate
under your signature your authority. It is a crime to forge a signature or to
make a false entry on this statement or on the acknowledgement.
I received a
summons and complaint, or summons and notice, or notice of petition and
petition (strike out inapplicable terms) in the above- captioned matter at
(insert address).
PLEASE CHECK ONE
OF THE FOLLOWING; IF 2 IS CHECKED, COMPLETE AS INDICATED:
1. / / I am not in military service.
2. / / I am in military service, and my rank,
serial number and branch of service are as follows: Rank:________________________________
Serial number:_________________________ Branch of
Service:______________________
TO BE COMPLETED
REGARDLESS OF MILITARY STATUS: Date:_________________________________________(Date
this Acknowledgement is executed)I affirm the above as true under penalty of
perjury. Signature__________________________________
Print name__________________________________ Name of Defendant for which acting
__________________________________ Position with Defendant for which acting
(i.e., officer, attorney, etc.) PLEASE
COMPLETE ALL BLANKS INCLUDING DATES BY MAIL.
e.
Subsequent service.
Where a duly executed acknowledgement is not returned, upon the subsequent
service of process in another manner permitted by law, the summons or notice of
petition or paper served with the summons or notice of petition shall indicate
that an attempt previously was made to effect service pursuant to this
section.
f.
Disbursements.
Where the signed acknowledgement of receipt is not returned within thirty (30)
days after receipt of the documents mailed pursuant to subdivision (a) of this section,
the reasonable expense of serving process by an alternative method shall be
taxed by the court on notice pursuant to section 8402 of this chapter as a
disbursement to the party serving process, and the court shall direct immediate
judgment in that amount.
A person domiciled
in the state or subject to the jurisdiction of the courts of the state under
section 301 or 302, or his executor or administrator, may be served with the
summons without the state, in the same manner as service is made within the
state, by any person authorized to make service within the state who is a
resident of the state or by any person authorized to make service by the laws
of the state, territory, possession or country in which service is made or by
any duly qualified attorney, solicitor, barrister, or equivalent in such
jurisdiction.
Service may be
made without the state by any person authorized by section 313 in the same
manner as service is made within the state:
1.
in a matrimonial
action; or
2.
where a judgment
is demanded that the person to be served be excluded from a vested or
contingent interest in or lien upon specific real or personal property within
the state; or that such an interest or lien in favor of either party be
enforced, regulated, defined or limited; or otherwise affecting the title to
such property, including an action of interpleader or defensive interpleader;
or
3.
where a levy upon
property of the person to be served has been made within the state pursuant to
an order of attachment or a chattel of such person has been seized in an action
to recover a chattel.
The court, upon
motion without notice, shall order service of a summons by publication in an
action described in section 314 if service cannot be made by another prescribed
method with due diligence.
a.
Contents of order;
form of publication; filing. An order for service of a summons by publication
shall direct that the summons be published together with the notice to the
defendant, a brief statement of the nature of the action and the relief sought,
and, except in an action for medical malpractice, the sum of money for which
judgment may be taken in case of default and, if the action is brought to
recover a judgment affecting the title to, or the possession, use or enjoyment
of, real property, a brief description of the property, in two newspapers, at
least one in the English language, designated in the order as most likely to
give notice to the person to be served, for a specified time, at least once in
each of four successive weeks, except that in the matrimonial action
publication in one newspaper in the English language, designated in the order
as most likely to give notice to the person to be served, at least once in each
of three successive weeks shall be sufficient. The summons, complaint, or
summons and notice in an action for divorce or separation, order and papers on
which the order was based shall be filed on or before the first day of
publication.
b.
Mailing to
accompany publication in matrimonial actions. An order for service of a summons
by publication in a matrimonial action shall also direct that on or before the
first day of publication a copy of the summons be mailed to the person to be
served unless a place where such person probably would receive mail cannot with
due diligence be ascertained and the court dispenses with such mailing. A
notice of publication shall be enclosed.
c.
Time of
publication; when service complete. The first publication of the summons shall
be made within thirty days after the order is granted. Service by publication
is complete on the twenty-eighth day after the day of first publication, except
that in a matrimonial action it is complete on the twenty-first day after the
day of first publication.
A person served
with a summons other than by personal delivery to him or to his agent for
service designated under rule 318, within or without the state, who does not
appear may be allowed to defend the action within one year after he obtains
knowledge of entry of the judgment, but in no event more than five years after
such entry, upon a finding of the court that he did not personally receive
notice of the summons in time to defend and has a meritorious defense. If the
defense is successful, the court may direct and enforce restitution in the same
manner and subject to the same conditions as where a judgment is reversed or
modified on appeal. This section does not apply to an action for divorce,
annulment or partition.
A person may be
designated by a natural person, corporation or partnership as an agent for
service in a 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 a
revocation, or by the death, judicial declaration of incompetency or legal
termination of the agent or principal.
a.
Who can serve.
Except where otherwise prescribed by law or order of court, papers may be
served by any person not a party of the age of eighteen years or over.
b.
Upon an attorney.
Except where otherwise prescribed by law or order of court, papers to be served
upon a party in a pending action shall be served upon the party's attorney.
Where the same attorney appears for two or more parties, only one copy need be
served upon the attorney. Such service upon an attorney shall be made:
1.
by delivering the
paper to the attorney personally; or
2.
by mailing the
paper to the attorney at the address designated by that attorney for that
purpose or, if none is designated, at the attorney's last known address;
service by mail shall be complete upon mailing; 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; or
3.
if the attorney's
office is open, by leaving the paper with a person in charge, or if no person
is in charge, by leaving it in a conspicuous place; or if the attorney's office
is not open, by depositing the paper, enclosed in a sealed wrapper directed to
the attorney, in the attorney's office letter drop or box; or
4.
by leaving it at
the attorney's residence within the state with a person of suitable age and
discretion. Service upon an attorney shall not be made at the attorney's
residence unless service at the attorney's office cannot be made; or
5.
by transmitting
the paper to the attorney by electronic means, provided that a telephone number
or other station or other limitation, if any, is designated by the attorney for
that purpose. Service by electronic means shall be complete upon the receipt by
the sender of a signal from the equipment of the attorney served indicating
that the transmission was received, and the mailing of a copy of the paper to
that attorney. The designation of a telephone number or other station for
service by electronic means in the address block subscribed on a paper served
or filed in the course of an action or proceeding shall constitute consent to
service by electronic means in accordance with this subdivision. An attorney
may change or rescind a number or address designated for service of documents
by serving a notice on the other parties; or
6.
by dispatching the
paper to the attorney by overnight delivery service at the address designated
by the attorney for that purpose or, if none is designated, at the attorney's
last known address. Service by overnight delivery service shall be complete
upon deposit of the paper enclosed in a properly addressed wrapper into the
custody of the overnight delivery service for overnight delivery, prior to the
latest time designated by the overnight delivery service for overnight
delivery. Where the information is transmitted in a tangible medium of
expression.
A subpoena
requires the attendance of a person to give testimony. A subpoena duces tecum
requires production of books, papers and other things. A child support subpoena
is a subpoena issued pursuant to section one hundred eleven-p of the social
services law by the department of social services or a social services
district, or its authorized representative, or another state's child support
enforcement agency governed by title IV-D of the social security act.
a.
Without court
order. Subpoenas may be issued without a court order by the clerk of the court,
a judge where there is no clerk, the attorney general, an attorney of record
for a party to an action, an administrative proceeding or an arbitration, an
arbitrator, a referee, or any member of a board, commission or committee
authorized by law to hear, try or determine a matter or to do any other act, in
an official capacity, in relation to which proof may be taken or the attendance
of a person as a witness may be required; provided, however, that a subpoena to
compel production of a patient's clinical record maintained pursuant to the
provisions of section 33.13 of the mental hygiene law shall be accompanied by a
court order. A child support subpoena may be issued by the department, or the
child support enforcement unit coordinator or support collection unit
supervisor of a social services district, or his or her designee, or another
state's child support enforcement agency governed by title IV-D of the social
security act.
b.
Issuance by court.
A subpoena to compel production of an original record or document where a
certified transcript or copy is admissible in evidence, or to compel attendance
of any person confined in a penitentiary or jail, shall be issued by the court.
Unless the court orders otherwise, a motion for such subpoena shall be made on
at least one day's notice to the person having custody of the record, document
or person confined. A subpoena to produce a prisoner so confined shall be
issued by a judge to whom a petition for habeas corpus could be made under
subdivision (b) of section 7002 of the civil practice law and rules or a judge
of the court of claims, if the matter is pending before the court of claims or
a judge of the surrogate's court if the matter is pending before the surrogates
court, or a judge of the family court, if the matter is pending before the
family court.
a.
A subpoena
requiring attendance or a subpoena duces tecum shall be served in the same
manner as a summons, except that where service of such a subpoena is made
pursuant to subdivision two or four of section three hundred eight of this
chapter, the filing of proof of service shall not be required and service shall
be deemed complete upon the later of the delivering or mailing of the subpoena,
if made pursuant to subdivision two of section three hundred eight of this
chapter, or upon the later of the affixing or mailing of the subpoena, if made
pursuant to subdivision four of section three hundred eight of this chapter.
Any person subpoenaed shall be paid or tendered in advance authorized traveling
expenses and one day's witness fee.
b.
A child support
subpoena issued pursuant to section one hundred eleven-p of the social services
law to public utility companies and corporations, including but not limited to
cable television, gas, electric, steam, and telephone >Any person may comply
with a subpoena duces tecum by having the requisite books, documents or things
produced by a person able to identify them and testify respecting their origin,
purpose and custody.
c.
Inspection,
examination and audit of records. Whenever by statute any department or agency
of government, or officer thereof, is authorized to issue a subpoena requiring
the production of books, records, documents or papers, the issuing party shall
have the right to the possession of such material for a period of time, and on
terms and conditions, as may reasonably be required for the inspection,
examination or audit of the material. The reasonableness of such possession,
time, terms, and conditions shall be determined with consideration for, among
other things, (i) the good cause shown by the issuing party, (ii) the rights
and needs of the person subpoenaed, and (iii) the feasibility and
appropriateness of making copies of the material. The cost of reproduction and
transportation incident thereto shall be borne by the person or party issuing
the subpoena unless the court determines otherwise in the interest of justice.
a.
Transcript or
reproduction. Where a subpoena duces tecum is served upon a hospital, or upon a
department or bureau of a municipal corporation or of the state, or an officer
thereof, requiring the production of records relating to the condition or
treatment of a patient, a transcript or a full-sized legible reproduction,
certified as correct by the superintendent or head of the hospital, department
or bureau or his assistant, or the officer, may be produced unless otherwise
ordered by a court. Such a subpoena shall be served at least three days before
the time fixed for the production of the records unless otherwise ordered by a
court.
b.
Delivery to clerk.
Where a court has designated a clerk to receive records described in
subdivision (a), delivery may be made to him at or before the time fixed for
their production. The clerk shall give a receipt for the records and notify the
person subpoenaed when they are no longer required. The records shall be
delivered in a sealed envelope indicating the title of the action, the date
fixed for production and the name and address of the attorney appearing on the
subpoena. They shall be available for inspection pursuant to the rules or order
of the court.
Issuance by court.
A subpoena duces tecum to be served upon a library, or a department or bureau
of a municipal corporation or of the state, or an officer thereof, requiring
the production of any books, papers or other things, shall be issued by a justice
of the supreme court in the district in which the book, paper or other thing is
located or by a judge of the court in which an action for which it is required
is triable. Unless the court orders otherwise, a motion for such subpoena shall
be made on at least one day's notice to the library, department, bureau or
officer having custody of the book, document or other thing and the adverse
party. Such subpoena must be served upon such library, or such department or
bureau of such municipal corporation or of the state or an officer having
custody of the book, document or other thing and the adverse party at least
twenty-four hours before the time fixed for the production of such records
unless in the case of an emergency the court shall by order dispense with such
notice otherwise required. Compliance with a subpoena duces tecum may be made
by producing a full-sized legible reproduction of the item or items required to
be produced certified as complete and accurate by the person in charge of such
library, department or bureau, or a designee of such person, and no personal
appearance to certify such item or items shall be required of such person or
designee, unless the court shall order otherwise pursuant to subdivision (d) of
rule 2214 of this chapter. Where a stipulation would serve the same purpose as
production of the book, document or other thing and the subpoena is required
because the parties will not stipulate, the judge may impose terms on any
party, including the cost of production of the book or document, and require
such cost to be paid as an additional fee to the library, department or
officer.
a. Judicial. Failure to comply with a
subpoena issued by a judge, clerk or officer of the court shall be punishable
as a contempt of court. If the witness is a party the court may also strike his
pleadings. A subpoenaed person shall also be liable to the person on whose
behalf the subpoena was issued for a penalty not exceeding fifty dollars and
damages sustained by reason of the failure to comply. A court may issue a
warrant directing a sheriff to bring the witness into court. If a person so
subpoenaed attends or is brought into court, but refuses without reasonable
cause to be examined, or to answer a legal and pertinent question, or to
produce a book, paper or other thing which he was directed to produce by the
subpoena, or to subscribe his deposition after it has been correctly reduced to
writing, the court may forthwith issue a warrant directed to the sheriff of the
county where the person is, committing him to jail, there to remain until he
submits to do the act which he was so required to do or is discharged according
to law. Such a warrant of commitment shall specify particularly the cause of
the commitment and, if the witness is committed for refusing to answer a
question, the question shall be inserted in the warrant.
b. Non-judicial.
1.
Unless otherwise
provided, if a person fails to comply with a subpoena which is not returnable
in a court, the issuer or the person on whose behalf the subpoena was issued
may move in the supreme court to compel compliance. If the court finds that the
subpoena was authorized, it shall order compliance and may impose costs not
exceeding fifty dollars. A subpoenaed person shall also be liable to the person
on whose behalf the subpoena was issued for a penalty not exceeding fifty
dollars and damages sustained by reason of the failure to comply. A court may
issue a warrant directing a sheriff to bring the witness before the person or
body requiring his appearance. If a person so subpoenaed attends or is brought
before such person or body, but refuses without reasonable cause to be
examined, or to answer a legal and pertinent question, or to produce a book,
paper or other thing which he was directed to produce by the subpoena, or to
subscribe his deposition after it has been correctly reduced to writing, the
court, upon proof by affidavit, may issue a warrant directed to the sheriff of
the county where the person is, committing him to jail, there to remain until
he submits to do the act which he was so required to do or is discharged
according to law. Such a warrant of commitment shall specify particularly the
cause of the commitment and, if the witness is committed for refusing to answer
a question, the question shall be inserted in the warrant.
2.
Notwithstanding
the provisions of paragraph one of this subdivision, if a person fails to
comply with a subpoena issued pursuant to section one hundred eleven-p of the
social services law by the department of social services or a social services
district, or its authorized representative, or another state's child support
enforcement agency governed by title IV-D of the social security act, such
department or district is authorized to impose a penalty against the subpoenaed
person. The amount of the penalty shall be determined by the commissioner of
the department of social services and set forth in regulation, and shall not
exceed fifty dollars. Payment of the penalty shall not be required, however, if
in response to notification of the imposition of the penalty the subpoenaed
person complies immediately with the subpoena.
c. Review of proceedings. Within ninety days
after the offender shall have been committed to jail he shall, if not then discharged
by law, be brought, by the sheriff, or other officer, as a matter of course
personally before the court issuing the warrant of commitment and a review of
the proceedings shall then be held to determine whether the offender shall be
discharged from commitment. At periodic intervals of not more than ninety days
following such review, the offender, if not then discharged by law from such
commitment, shall be brought, by the sheriff, or other officer, personally
before the court issuing the warrant of commitment and further reviews of the
proceedings shall then be held to determine whether he shall be is charged from
commitment. The clerk of the court before which such review of the proceedings
shall be held, or the judge or justice of such court in case there be no clerk,
shall give reasonable notice in writing of the date, time and place of each
such review to each party or his attorney who shall have appeared of record in
the proceeding resulting in the issuance of the warrant of commitment, at their
last known address.
All service or
execution of legal process, of any kind whatever, on the first day of the week
is prohibited, except in criminal proceedings or where service or execution is
specially authorized by statute. Service or execution of any process upon said
day except as herein permitted is absolutely void for any and every purpose
whatsoever.
Whoever maliciously procures any process in a
civil action to be served on Saturday, upon any person who keeps Saturday as
holy time, and does not labor on that day, or serves upon him any process returnable
on that day, or maliciously procures any civil action to which such person is a
party to be adjourned to that day for trial, is guilty of a misdemeanor.
For this article,
a process server is a person other than an attorney or a party to an action
acting on his own behalf who: (a) derives income from the service of papers in
an action; or (b) has effected service of process in five or more actions or
proceedings in the twelve month period immediately preceding the service in
question. A person who serves interlocutory papers upon an attorney or who
serves papers on behalf of a federal, state or local governmental agency in the
course of his employment by such agency shall not be deemed a process server
within the meaning of this article by virtue of such service.
1.
Each process
server shall maintain a legible record of all service made by him as prescribed
in this section.
2.
The record to be
maintained shall include the following information, where applicable:
i.
the title of the
action;
ii.
the name of the
person served, if known;
iii.
the date and
approximate time service was effected;
iv.
the address where
service was effected;
v.
the nature of the
papers served;
vi.
the court in which
the action has been commenced;
vii.
the index number
of the action, if known.
3.
If service is
effected pursuant to subdivisions one, two, or three of section three hundred
eight of the civil practice law and rules, the record shall also include the
description of the person served, including, but not limited to, sex, color of
skin, hair color, approximate age, height and weight and other identifying
features.
4.
If service is
effected pursuant to subdivision four of section three hundred eight of the
civil practice law and rules, the record shall also include the dates,
addresses and time of attempted service pursuant to subdivisions one, two or
three of such section.
5.
If the process
server files an affidavit of service with the court, his record shall include
the date of such filing.
6.
Process servers
shall retain each record required to be kept under this article for a period of
two years from the date of service. Where a process server is employed as a
process server by any person, a copy of such records shall also be maintained
by such person at his principal office in this state for the same period.
In addition to the
other remedies provided, whenever there shall be a violation of this article,
application may be made by the attorney general in the name of the people of
the state of New York to a court or justice having jurisdiction by a special
proceeding to issue an injunction, and upon notice to the defendant of not less
than five days, to enjoin and restrain the continuance of such violations; and
if it shall appear to the satisfaction of the court or justice that the
defendant has, in fact, violated this article, an injunction may be issued by
such court or justice, enjoining and restraining any further violation, without
requiring proof that any person has, in fact, been injured or damaged thereby.
In any such proceeding, the court may make allowances to the attorney general
as provided in paragraph six of subdivision (a) of section eighty-three hundred
three of the civil practice law and rules. Whenever the court shall determine
that a violation of this article has occurred, the court may impose a civil
penalty of not more than one thousand dollars for each violation. Provided,
however, a process server or agency may not be held liable for penalty in any
action brought under this section for violation of this article, if the process
server or agency shows by a preponderance of the evidence that the violation
was not intentional and resulted from a bona fide error, notwithstanding the
maintenance of procedures reasonably adopted to avoid any such error. Examples
of a bona fide error include, but are not limited to, clerical calculation,
computer malfunction and programming and printing errors. In connection with
any such proposed application, the attorney general is authorized to take proof
and make a determination of the relevant facts and to issue subpoenas in
accordance with the civil practice law and rules.
1.
A "process
server" is a person, other than an attorney or a party to an action acting
on his own behalf, who: (a) derives income from the service of papers in an
action; or (b) has effected service of process in five or more actions or
proceedings in the twelve month period immediately preceding the service in
question. A person who serves interlocutory papers upon an attorney or who
serves papers on behalf of a federal, state or local governmental agency in the
course of his employment by such agency shall not be deemed a process server
within the meaning of this article by virtue of such service.
2.
A "process
serving agency" is any person, firm, partnership, association or
corporation, other than an attorney or a law firm located in this state, who,
as owner, manager or contractor, maintains an office, bureau or agency for the
purpose of assigning or distributing process to individual process servers for
actual service.
1.
Each process
server shall maintain a legible record of all service made by him as prescribed
in this section. Such records shall be kept in chronological order in a bound,
paginated volume. Corrections in records shall be made only by drawing a
straight line through the inaccurate entry and clearly printing the accurate
information directly above the inaccurate entry. All other methods of
correction, including but not limited to erasing, opaquing, obliterating or
redacting, are prohibited.
2.
The record to be
maintained shall include the following information, where applicable:
i.
the title of the
action or a reasonable abbreviation thereof;
ii.
the name of the
person served, if known;
iii.
the date and
approximate time service was effected;
iv.
the address where
service was effected;
v.
the nature of the
papers served;
vi.
the court in which
the action has been commenced;
vii.
the index number
of the action, if known;
viii.
if service is
effectuated pursuant to subdivision four of section three hundred eight of the
civil practice law and rules or subdivision one of section seven hundred
thirty-five of the real property actions and proceedings law, a description of
the color of the door to which the summons is affixed;
ix.
the process
serving agency from whom the process served was received, if any;
x.
type of service
effected whether personal, substituted or conspicuous;
xi.
if service is
effected pursuant to subdivision one, two or three of section three hundred
eight of the civil practice law and rules, the record shall also include the
description of the person served, including, but not limited to sex, color of
skin, hair color, approximate age, height and weight and other identifying
features;
xii.
if service is
effected pursuant to subdivision four of section three hundred eight of the
civil practice law and rules, the record shall also include the dates,
addresses and time of attempted service pursuant to subdivision one, two or
three of such section;
xiii.
if the process
server files an affidavit of service with the court, his record shall include
the date of such filing.
1.
Each process
serving agency shall be required to keep complete and accurate records with
respect to each process server to whom it distributes, assigns or delivers
process to be served. Corrections in records shall be made only by drawing a
straight line through the inaccurate entry and clearly printing the accurate
information directly above the inaccurate entry. All other methods of
correction, including but not limited to, erasing, opaquing, obliterating, or
redacting, are prohibited.
2.
Such records shall
include, where applicable:
a.
The name of the
process server to whom process is distributed, assigned or delivered to be
served;
b.
The titles or a reasonable
abbreviation thereof and index numbers of each case if filed in court by the
agency;
c.
The date that such
papers were assigned for service, and the date that service was effected;
d.
The person from
whom such papers were received for service;
e.
The date of filing
of papers with the court if filed by the agency;
f.
The type of
service effected whether personal, substituted or conspicuous.
1.
It shall be
unlawful for a process server to fail to comply with all legal requirements for
the service of process.
2.
A process serving
agency shall be legally responsible for the acts of each process server to whom
it has distributed, assigned or delivered process for service if it could
reasonably have known that the process server was acting improperly.
3.
It shall be
unlawful for a process serving agency or a process server to fail to comply
with all laws and regulations respecting preparation, notarization and filing
of affidavits of service of process and other documents.
It shall be unlawful for a process server to
fail to set forth on any affidavit of service or process signed by him his
license or registration number if such process server is required to be
licensed or registered pursuant to any state or local law and the name and
address of any process serving agency from whom he obtained the process for
service if any.
All records required
to be maintained by this article shall be retained by a process server or
process serving agency for a minimum of three years and shall be available for
inspection by the attorney general. The attorney general shall afford a process
server or process serving agency at least five days prior written notice of its
desire to make an inspection of records and shall specify the records to be
inspected.
In addition to the
other remedies provided, whenever there shall be a violation of this article,
application may be made by the attorney general in the name of the people of
the state of New York to a court or justice having jurisdiction by a special
proceeding to issue an injunction, and upon notice to the defendant of not less
than five days, to enjoin and restrain the continuance of such violations; and
if it shall appear to the satisfaction of the court or justice that the
defendant has, in fact, violated this article, an injunction may be issued by such
court or justice, enjoining and restraining any further violation, without
requiring proof that any person has, in fact, been injured or damaged thereby.
In any such proceeding, the court may make allowances to the attorney general
as provided in paragraph six of subdivision (a) of section eighty-three hundred
three of the civil practice law and rules. Whenever the court shall determine
that a violation of this article has occurred, the court may impose a civil
penalty of not more than one thousand dollars for each violation. Provided,
however, a process server or agency may not be held liable for penalty in any
action brought under this section for violation of this article, if the process
server or agency shows by a preponderance of the evidence that the violation
was not intentional and resulted from a bona fide error, notwithstanding the
maintenance of procedures reasonably adopted to avoid any such error. Examples
of a bona fide error include, but are not limited to, clerical calculation,
computer malfunction and programming and printing errors. In connection with
any such proposed application, the attorney general is authorized to take proof
and make a determination of the relevant facts and to issue subpoenas in
accordance with the civil practice law and rules.
Nothing in this article shall be construed to
nullify or impair any right or rights which an individual may have against a process
server or process serving agency at common law, by statute or otherwise.
This article does
not annul, alter, affect or exempt any person or business entity subject to the
provisions of this article from complying with any local law, ordinance or
regulation with respect to process servers or process serving agencies except
to the extent that those laws are inconsistent with any provision of this
article, and then only to the extent of the inconsistency. For purposes of this
section, a local law, ordinance or regulation is not inconsistent with this
article if the protection such law or regulation affords a consumer is greater
than the protection provided by this article.
If any provision
of this article or if any application thereof to any person or circumstance is
held invalid, the remainder of this article and the application of the
provision to other persons and circumstances shall not be affected thereby.
This article shall
apply only in cities having a population of one million or more.
Administrative
Code of New York City
§ 20-403 License
required.
It shall be unlawful for any person to be
employed as or perform the services of process server without a license
therefore.
a.
A process server
is a person engaged in the business of serving or one who purports to serve or
one who serves personally or by substituted service upon any person,
corporation, governmental or political subdivision or agency, a summons,
subpoena, notice, citation or other process, directing an appearance or
response to a legal action, legal proceeding or administrative
proceedings.
b.
For the purposes
of this subchapter the service of five or more process in any one year shall be
deemed to constitute doing business as a process server.
a.
The provisions of
this subchapter shall not apply to any employee of any city, state or federal
department or agency, who is acting within the scope of his or her
employment.
b.
The provisions of
this subchapter shall not apply to attorneys duly admitted to practice law in
the state of New York.
a.
An application for
such a license or renewal thereof shall be made to the commissioner on a form
prescribed by him or her.
b.
The commissioner
shall require that applicants for licenses issued pursuant to this subchapter
be fingerprinted for the purpose of securing criminal history records from the
state division of criminal justice services. The applicant shall pay a
processing fee as required by the state division of criminal justice services.
Fingerprints shall be taken of the individual owner if the applicant is a sole proprietorship;
the general partners if the applicant is a partnership; and the officers,
principals, directors, and stockholders owning more than ten percent of the
outstanding stock of the corporation if the applicant is a corporation. Any
person required to be fingerprinted hereunder shall furnish to the department
three current passport-sized photographs of such person. Notwithstanding the
foregoing, the commissioner need not require applicants for licenses required
under this subchapter to be fingerprinted if criminal history records
concerning such applicants are not available from the state division of
criminal justice services.
The biennial
license fee to be paid by such persons shall be three hundred forty dollars.
The commissioner
may make and promulgate such rules and regulations as he or she may deem
necessary for the proper implementation and enforcement of this subchapter.
a.
a. A license
issued hereunder may be suspended or revoked or its renewal denied by the
commissioner at any time for the failure of the licensee to comply with any
rule, regulation or order promulgated by the commissioner.
b.
In addition to any
of the powers that may be exercised by the commissioner pursuant to this
subchapter and chapter one of this title, the commissioner, after notice and an
opportunity to be heard, may refuse to issue or renew, or may suspend or
revoke, a license required under this subchapter if the applicant or licensee,
or any of its principals, officers or directors, or any of its stockholders
owning more than ten percent of the outstanding stock of the corporation has
been convicted of a crime which, in the judgment of the commissioner, has a
direct relationship to such person's fitness or ability to perform any of the
activities for which a license is required under this subchapter or has been
convicted of any other crime which, in accordance with article twenty-three-a
of the correction law, would provide a justification for the commissioner to
refuse to issue or renew, or to suspend or revoke, such license.
In New York, lobbyists and state officials
are always active in transforming laws concerning civil procedure. As a result, state information offered on
our website may have been amended recently.
For contemporary process serving and civil statutes, visit the official
New York Judicial System Court website: http://www.courts.state.ny.us/home.htm
