Service of Process New York & New York Secretary of State: Statutory Agent for Service of Process
Service of Process in New York requires strict attention to detail to adhere to the rules and guidelines of each jurisdiction. New York City process servers, for example, have stricter requirements for serving papers than process servers in other regions handling service of process in New York. In addition, there are different laws for different types of services. Finally, this article will cover the separate instructions for service of process on a business or not-for-profit corporation. In this case, the New York Secretary of State is the statutory agent for service of process.
New York City Process Servers
In response to complaints of “sewer service” or process servers who illegally dump papers instead of serving them, New York’s City Council passed legislation strengthening the rules for process servers. The bill’s sponsor, Councilman Daniel Garodnick, said that raising industry standards and using new technologies will give New Yorkers a fair chance to answer claims against them.
Process Server Individual License:
Those who serve five (5) or more processes in any one-year period, personally or by substituted service (leaving service documents with another responsible individual) now must have a Process Server Individual License. New York requires all process servers within each of the 5 boroughs (Manhattan, Brooklyn, Bronx, Staten Island, and Queens) to be licensed through the NYC Department of Consumer Affairs. Individual process servers must pay a surety bond of $10,000, and agencies must pay a bond of $100,000 to be effective for their entire license term. Process servers must also pass a test on relevant rules and laws before being issued a license or renewal. An individual license is not required if the process server is:
• An attorney admitted to practice in New York State.
• An employee of a city, state, or federal department or agency acting within the scope of their employment.
Electronic Devices Rule
As of November 12, 2011, New York City process servers must carry and operate an electronic device that records the Global Positioning System (GPS) location while serving process. It is required that New York City process servers must keep electronic records of their serves, and track serves with global positioning systems (GPS) in accordance with the Commissioner’s rules.
Service of Process in New York: The Basics
Don’t serve papers on Sunday or the Sabbath!
Service of Process in New York is the serving of papers that start a lawsuit. Service of process rules must be strictly followed. According to the New York County – Supreme Court, Civil Branch, “Failure to serve properly can result in the dismissal of the lawsuit. The person serving papers must be over the age of 18 and can’t be a party to the case. Papers may be served by a friend, relative or a process server. Papers may not be served on a Sunday, or on a Saturday if service is upon someone who celebrates Saturday as the Sabbath. See General Business Law 11.”
Different service requires different rules!
The following is an excerpt from Supreme Court, Civil Branch, New York County, “How to Serve Legal Papers”
In relation to Service of Process in New York, most cases must be filed through the New York State Courts Electronic Filing System (“NYSCEF”). Documents to be filed with the court must be e-filed through NYSCEF. This does not apply to matrimonial or Election Law cases.
A New York Process Server must be aware that all initiating papers such as Civil Actions including Summons with Notice and/or Summons with Complaint, or Special Proceedings which include Petitions, must be filed in Supreme Court and receives its own identifying case number, known as an Index Number. A case is started only after getting the Index Number. Copies of the initiating papers must state the Index Number and the date the initiating papers were filed in the County Clerk’s Office. Civil Actions and Special Proceedings have different procedures: In a civil action, the summons with notice or summons and complaint must be served. In a special proceeding, the petition must be served along with either a notice of petition or an order to show cause, which fix a return date for the petition.
A summons with notice or a summons and complaint must be served and proof of service filed within 120 days of getting the Index Number. In a special proceeding where the statute of limitations is four months or less, copies of the petition and notice of petition or order to show cause must be served and the proof of service filed within 15 days after the date the statute of limitations expires.
If the papers are served by substituted or “nail and mail” service, the affidavit of service must be filed within 20 days of service.
After the serve has been done, the person who served the papers must fill out an affidavit of service. The affidavit must be sworn to and signed in front of a notary. This affidavit must describe the date, place, time and how the papers were served and indicate the sex, skin and hair color, and the approximate age, height and weight of the person served.
In a matrimonial case, the server must also explain how he or she knew that the person served was the named defendant.
Personal Service on a Person
Personal service on a person shall be made in one of the following three ways:
1. Personal Delivery – delivering papers within New York State to the person to be served.
2. Substituted Service- two steps, both of which are required:
Step 1: Delivering the process within New York State to a person of suitable age and discretion, who is willing to accept the papers, at the actual place of business, dwelling place or usual place of abode of the defendant or respondent and
Step 2: Mailing the papers by first class mail to the person to be served at his or her last known residence or mailing them to his or her actual place of business. Important: The envelope to be used for the mailing must be marked “Personal and Confidential” and must not show in any way that the envelope contains papers about a legal action against the person being served.
3. Serving an Agent – delivering the initiating papers within New York State to a designated Agent, (someone chosen by the person to accept process). This method cannot be used in divorce actions.
“Nail and Mail” Service
If several genuine attempts at personal and substituted service have failed, and the case is not a divorce case, the papers may be serviced by taking the following two steps:
Step 1: Affix the summons to the door of either the actual place of business, dwelling place, or usual place of abode within New York State of the person to be served and
Step 2: Mail the process by first class mail to the person to be served at his or her last known residence or mailing them to his or her actual place of business.
The affidavit of service by “nail and mail” must describe in detail the times and places of all the previous attempts at personal service, before “nail and mail” service was used.
Service of Process on the Secretary of State as Agent of Domestic and Authorized Foreign Entities
The Secretary of State is the statutory agent for service of process on domestic entities which were formed in New York State, and foreign entities which were formed in jurisdictions other than New York State. Anyone who wishes to serve process on business corporations, not-for-profit corporations, limited liability companies, limited partnerships, and limited liability partnerships, (foreign or domestic), conducts the service of process on the Secretary of State.
The following is an exceprt from the New York State, Department of State, Division of Corporations, State Records and Uniform Commercial Code regarding how this service is conducted:
1. The Process Server must determine the identity of the entity intended to be served.
More than one million domestic and authorized foreign entities are registered with the Department of State (DOS). In many cases, the name of the entity intended to be served may be similar to, or even the same as the names of other entities. The Process Server, and not the DOS, is responsible for identifying precisely which entity is intended to be served.
2. The Process Server must obtain the DOS Search Page for the entity the Process Server intends to serve.
When the Process Server determines which entity is to be served, DOS will provide the Process Server with the “Current Status Information” for that entity. This is referred to as the DOS Search Page. A Process Server with access to the official DOS database may print his or her own copies of the DOS Search Page for the entity he or she intends to serve.
3.) The Process Server must complete a “Service of Process Cover Sheet”
The Process Server will be required to complete a “Service of Process Cover Sheet” indicating the name of the entity to be served, the section of law under which service is being made, the manner in which the applicable fee is being paid, and the name and address of the Process Server.
4.) The Process Server must hand-deliver two duplicate copies of the process being served (with the Service of Process Cover Sheet and DOS Search page attached) and the applicable fee, to an authorized person at DOS’s office in Albany, New York.
The statutes applicable to service of process on a domestic or authorized foreign entity specify that service consists of personal delivery of 1) duplicate copies of the process and 2) the statutory fee. DOS will reject the service if the copies delivered are not duplicate copies or if the copies of the process are altered (such as by changing the name of a defendant.)
5.) DOS will presume that the entity intended to be served is the entity identified in the DOS Search page stapled to the process being served.
In the case of service upon a domestic or authorized foreign entity, DOS mails one copy of the process to the entity served at the address provided by that entity. If the Process Server identifies the wrong entity, service will not be effective as against the entity intended to be served. DOS will presume that the Process Server intends to serve the entity identified in the DOS Search Page attached to the process at the time of service even if the name does not match the name as it appears on the Service of Process Cover Sheet.
As is clear from the information above, the rules and regulations for Service of Process in New York can seem daunting. That is why it is imperative to hire a litigation support firm that has a clear handle on all the intricacies involved with requirements related to various types of Service of Process in New York, new regulations in New York City and procedures for Service of Process on the New York State Secretary of State. Headquartered in Clifton Park, New York, Avvocato Litigation Support International is located just 17 miles from the Secretary of State offices. Call today for more information! (518) 452-6404 or email firstname.lastname@example.org.