NYP 3.txt

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Author:
twiggy924
ID:
26443
Filename:
NYP 3.txt
Updated:
2010-07-12 12:38:31
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Service Process
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Description:
Service of Process
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  1. 3 things needed for a NY court to render a valid (enforceable) judgment?
    • Proper commencement of the action
    • Proper service of process on ∆
    • Proper basis of jurisdiction over the person or property involved in the action
  2. How is an action commenced?
    • Filing process with clerk of the court
    • Serving process on ∆ within 120 days of the filing
  3. What does process consist of?
    • Summons and complaint, or
    • Summons and notice (brief statement of nature of action, relief sought, among of damages)
  4. Who can serve process?
    Any non-party who is at least 18 years old
  5. On what days of the week may process be served?
    • Any day of the week, except—
    • Sunday, or
    • Saturday, IF π knows that ∆ is a Saturday-Sabbath observer (no defect for innocent mistake)
  6. When is Personal Delivery "complete"?
    Date that process is served directly upon ∆ (or date of ∆'s refusal, if ∆ is available but refuses to be served)
  7. What is "suitable age and discretion?"
    ≥ 15 years old
  8. What is service by Leave-and-Mail?
    • 1: Personal delivery upon person of suitable age and discretion at ∆'s actual dwelling/place business, AND
    • 2: Follow-up mailing to ∆'s actual place of business or last-known residence, AND
    • 3: Filing of proof of service
  9. What is necessary for service by AFFIX-AND-MAIL?
    • ***In order to use affix-and-mail, must show that personal delivery and leave-and-mail were attempted with due diligence.
    • (1) AFFIXING process to door of ∆'s actual dwelling/POB, AND
    • (2) MAILING a copy of process (by regular mail) to ∆'s actual POB or last-known address
    • (3) Filing PROOF OF SERVICE
  10. EXPEDIENT ("COURT INVENTED") SERVICE

    1) What is it?
    2) What is requried?
    1) SIGNED ORDER from a court allowing an alternative method of service

    2) REQUIREMENTS

    • (1) IMPRACTICALITY of other methods of service (personal delivery, leave-and-mail, affix-and-mail)
    • (2) EX PARTE motion with court allowing the invented method of service
  11. SERVICE ON INFANT
    When ∆ is an infant, process must be served (using any authorized method) on one of the following adults

    • 1) parent
    • 2) guardian
    • 3) any person having legal custody of ∆
    • 4) adult spouse to whom ∆ infant is married and with whom ∆ infant lives

    ***if ∆ infant is ≥ 14 years old, an additional copy of process must be served on the infant—i.e., must serve on both the ∆ infant AND one of the adults mentioned above
  12. SERVICE ON MENTALLY INCOMPETENT PERSON
    • (1) Serve 1 copy (using any authorized method) on mentally incompetent person, AND
    • (2) Serve 1 additional copy on court-appointed guardian IF one has been appointed

    **If no court-appointed guardian, then ∆ is served in the same manner as any other ∆.
  13. SERVICE OUTSIDE NEW YORK

    1) What methods may be used to serve process outside NY?
    2) Who may serve process outside NY?
    1) ANY METHOD USED IN NY may be used to serve process outside NY

    2) PERSONS AUTHORIZED TO SERVE PROCESS OUTSIDE NY–

    • NY RESIDENT if authorized under NY law (i.e., non-party at least 18 y/o)
    • Anyone authorized to serve process by the laws of the jurisdiction where service is made
    • Any attorney licensed in the jurisdiction where service is made
  14. Service of Process on Unlicensed Foreign Corporation
    • Two methods:
    • (1) Personal Delivery to an officer, director, designated agent, managing agent or cashier.
    • (2) Personal delivery of ONE copy to NY Secretary of State PLUS, one copy to corporation by certified mail, return receipt requested.
  15. How may process be served on a domestic or licensed foreign corporation?
    • Two methods:
    • (1) Personal Delivery to an officer, director, designated agent, managing agent or cashier.
    • (2) Personal delivery of TWO copies to NY Secretary of State (NYSS will forward 2nd copy to corporation for you).
  16. SERVICE ON CORPORATIONS

    On whom may PERSONAL DELIVERY be made?
    • Officer
    • Director
    • Designated agent
    • Managing agent (person with general supervisory authority)
    • Cashier or cashier's assistant
  17. FIRST-CLASS MAIL PLUS ACKNOWLEDGMENT

    1) How is service made?
    2) On whom may it be made?
    1) SERVICE MADE in the following manner

    • (1) First-class mail process to ∆
    • (2) Include 2 copies of statutory acknowledgement form
    • (3) Include pre-addressed stamped envelope for return

    Service is effective ONLY IF ∆ signs and returns one of the acknowledgement forms within 30 DAYS of receiving the mailed process. Return of acknowledgment form is not consent to PJ.

    2) MAY BE USED TO SERVE PROCESS ON

    • Corporations (whether domestic or foreign)
    • Natural persons (except infants and mentally incompetent persons with court-appointed guardian)

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