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Licensing of Process Servers:
The State of
Rule 305. Summons;
supplemental summons, amendment.
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 plaintiff’s 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.
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.
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.
Rule 306. Proof of service.
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.
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.
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.
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.
Admission of service.
A writing admitting service by the person to be served is adequate proof of
service.
Rule 306-a Index number in an action
commenced in supreme or county court.
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.
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.
Rule 306-b 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.
Rule 307. Personal service upon the
state.
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.
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.
Rule 308. Personal service upon a
natural person.
Personal service upon a natural person shall be made by any of the following
methods:
by delivering the summons within the state to the person to be served; or
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
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;
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;
in such manner as the court, upon motion without notice, directs, if service is
impracticable under paragraphs one, two and four of this section.
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.
Rule 309. Personal service upon an
infant, incompetent or conservatee.
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.
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.
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.
Rule 310. Personal service upon a
partnership.
Personal service upon persons conducting a business as a partnership may be
made by personally serving the summons upon any one of them.
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.
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.
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.
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.
Rule 310-a. Personal service upon a
limited partnership.
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.
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 limited liability partnership may also be served pursuant to section 121-1505
of the partnership law.
Rule 311. Personal service upon a
corporation or governmental subdivision.
Personal service upon a corporation or governmental subdivision shall be made
by delivering the summons as follows:
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;
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;
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;
upon a county, to the chair or clerk of the board of supervisors, clerk,
attorney or treasurer;
upon a town, to the supervisor or the clerk;
upon a village, to the mayor, clerk, or any trustee;
upon a school district, to a school officer, as defined in the education law;
and
upon a park, sewage or other district, to the clerk, any trustee or any member
of the board.
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.
Rule 311-a. Personal service on limited
liability companies.
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.
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.
Rule 312-a. Personal service by
mail.
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.
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.
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.
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.
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
STATEMENT OF SERVICE BY MAIL
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.
ACKNOWLEDGEMENT OF RECEIPT OF SUMMONS AND COMPLAINT OR SUMMONS AND NOTICE OR
NOTICE OF PETITION AND PETITION
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.
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.
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.
Rule 313. Service without the state
giving personal jurisdiction.
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.
Rule 314. Service without the state not
giving personal jurisdiction in certain actions.
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:
in a matrimonial action; or
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
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.
Rule 315. Service by publication
authorized.
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.
Rule 316. Service by publication.
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.
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.
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.
Rule 317. Defense by person to whom
summons not personally delivered.
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.
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 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.
2103 N.Y.C.P.L.R. Service of
papers.
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.
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
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
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
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
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
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.
Article 23. Subpoenas, Oaths and
Affirmations
2301 N.Y.C.P.L.R. Scope of subpoena.
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.
2302 N.Y.C.P.L.R. Authority to
issue.
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.
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.
2303 N.Y.C.P.L.R. Service of subpoena;
payment of fees in advance.
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.
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.
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.
2306
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.
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.
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.
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.
2308 N.Y.C.P.L.R. Disobedience of
subpoena.
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.
Non-judicial.
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.
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.
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.
11 Gen. Bus. Serving civil process on
Sunday.
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.
13 Gen. Bus. Maliciously serving
process on Saturday on person who keeps Saturday as holy time.
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.
89-t Gen. Bus. Definitions.
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.
89-u Gen. Bus. Process server records, penalties.
Each process server shall maintain a legible record of all service made by him
as prescribed in this section.
The record to be maintained shall include the following information, where
applicable:
the title of the action;
the name of the person served, if known;
the date and approximate time service was effected;
the address where service was effected;
the nature of the papers served;
the court in which the action has been commenced;
the index number of the action, if known.
If service is affected 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.
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.
If the process server files an affidavit of service with the court, his record
shall include the date of such filing.
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.
89-v Gen. Bus. Enforcement by attorney
general.
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.
89-bb Gen. Bus. Definitions. For the
purposes of 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.
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.
89-cc Gen. Bus. Process server
records.
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.
The record to be maintained shall include the following information, where
applicable:
the title of the action or a reasonable abbreviation thereof;
the name of the person served, if known;
the date and approximate time service was effected;
the address where service was effected;
the nature of the papers served;
the court in which the action has been commenced;
the index number of the action, if known;
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;
the process serving agency from whom the process served was received, if any;
type of service effected whether personal, substituted or conspicuous;
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;
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;
if the process server files an affidavit of service with the court, his record
shall include the date of such filing.
89-dd Gen. Bus. Process serving agency
records.
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.
Such records shall include, where applicable:
The name of the process server to whom process is distributed, assigned or
delivered to be served;
The titles or a reasonable abbreviation thereof and index numbers of each case
if filed in court by the agency;
The date that such papers were assigned for service, and the date that service
was effected;
The person from whom such papers were received for service;
The date of filing of papers with the court if filed by the agency;
The type of service effected whether personal, substituted or conspicuous.
89-ee Gen. Bus. Responsibility of
process serving agency and process servers.
It shall be unlawful for a process server to fail to comply with all legal
requirements for the service of process.
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.
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.
89-ff Gen. Bus. Affidavits of service.
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.
89-gg Gen. Bus. Availability of
records.
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.
89-hh Gen. Bus. Enforcement by attorney
general.
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.
89-ii Gen. Bus. Preservation of private
remedies.
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.
89-jj Gen. Bus. Preemption.
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.
89-kk Gen. Bus. Severability.
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.
89-ll Gen. Bus. Applicability.
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.
20-404 Definition.
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.
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.
20-405 Exceptions.
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.
The provisions of this subchapter shall not apply to attorneys duly admitted to
practice law in the state of
20-406 Application;
fingerprinting.
An application for such a license or renewal thereof shall be made to the
commissioner on a form prescribed by him or her.
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.
20-407 Fee; term.
The biennial license fee to be paid by such persons shall be three hundred
forty dollars.
20-408 Rules and regulations.
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.
20-409 Issuance, renewal, suspension
and revocation of a license.
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.
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.