Delivering legal papers is called service of process. The law says that legal papers have to be delivered the right way. Every adult and organization listed in the case must be served with its own set of papers. This includes any papers that are mailed.
Who Can Serve Legal Papers– A party in the case can never serve legal papers, like a Summons and Complaint, a Notice of Petition and Petition, or a Motion, unless a Judge says it is o.k. A process server can be paid to serve the papers. Process servers are listed in the Yellow Pages or on the internet. Or, anyone, like a friend, can serve the papers. But, the person serving the papers must be 18 years old or older. A party can go with the person serving the papers when they are served. In NYC, the person serving the papers is not allowed to serve more than five papers each year.
Starting A Case– If legal papers are not served the right way when a case is started, the Judge may make the party starting the case start all over again. This is called a dismissal without prejudice. There are three ways to deliver legal papers to start a case.
The papers are handed to the defendant or respondent. This is the easiest way to serve papers. The plaintiff or petitioner can’t do this but must get someone else to do it for them.
- Papers can be handed to the other side anywhere.
- Papers can’t be served on Sundays or on a person’s religious observance days.
- In New York City for many Housing Court cases, papers should be served between 6:00 in the morning and 10:00 at night.
If the server can’t find the other side in person, there are rules for the other ways to serve papers.
Substituted service is one of the ways to deliver legal papers that start a case. The papers are left with someone else to give to the defendant or respondent and copies are mailed. Substituted service can only be used when personal delivery is tried and the person is not there. But, only the right person can be substituted for the defendant or respondent.
The Right Person To Substitute– The law says that the person substituted for the defendant or respondent has to be a person of suitable age and discretion. This means that the person is responsible and likely to give the papers to the defendant or respondent. The person does not have to be an adult but should not be a small child. For example, substituting a responsible teenage babysitter may be o.k. Substituting someone who appears drunk or mentally impaired may not be o.k.
Where To Serve The Papers- Legal papers must be served in the right place. Civil cases and landlord-tenant cases have different rules.
In a civil case, like consumer debt cases, the papers can be left with someone responsible at the defendant’s home or place of work.
In a landlord-tenant case, like a nonpayment case, the papers can be left with someone responsible who lives or works at the respondent’s home. The legal papers can’t be left at the respondent’s work. It is o.k. to serve the respondent’s babysitter, but it’s not o.k. to serve a neighbor or doorman.
In any case, if after making at least two attempts to deliver the legal papers, the server can’t find the defendant, respondent, or a responsible substitute, the server can use conspicuous place service and leave the papers. Read about the right way to use Conspicuous Service.
Conspicuous service is one of the ways to deliver legal papers that start a case. The papers are left for the defendant or respondent in a place where they are likely to be found and copies are mailed. But, the papers can’t be left just anywhere. The law tells you where.
When Papers Can Be Left– Papers can’t be left unless the process server first tried to find the defendant or respondent. The process server has to try at least two times at different times of the day or on different days. If the plaintiff or petitioner knows the other side’s schedule, he or she should tell the process server so there is a better chance that the papers will be hand-delivered. Otherwise, the server should try between 6:00 am and 10:00 pm.
If the plaintiff or petitioner knows that the other side is never at the place that the server tries, this not a good try because there is no chance that the papers would be hand-delivered. The other side could ask the court to dismiss the case by making a motion to dismiss the case.
When Papers Can Be Left- Legal papers must be left in the right place. Civil cases and landlord-tenant cases have different rules.
In a civil case, like consumer debt cases, after the attempts, the papers can be taped to the defendant’s door at his or her home or place of work.
In a landlord-tenant case, like a nonpayment case, after the attempts, the papers can be taped to the door or slipped under the door of the respondent’s home. The legal papers can’t be left at the respondent’s work.
Mailing- If service is done by conspicuous service the papers also have to be mailed to the defendant or respondent the right way.
After papers are delivered to the other side, proof of this has to be given to the court. This is done by filing an Affidavit of Service.
Delivering Legal Paper During The Case– After the case is started by the plaintiff or petitioner, all legal papers that need to be served can be given to the other side in person or by regular mail, before giving the original papers to the court. But, Orders to Show Cause are served the way the Judge says. If the other side has a lawyer, papers are only served at the address listed by the lawyer on the legal papers. Some legal papers, like motion papers, have time limits about when they have to be mailed. Whenever legal papers are served, proof of this has to be given to the court by filing an Affidavit of Service. Remember, a party in the case can’t mail or deliver the papers.
Filing an Affidavit of Service
Whenever any legal papers are served, the person serving the papers must fill out a written form that says how the papers were served. This form is filed with the Court after the service is done. This form is called an Affidavit of Service. A licensed process server will have his or her own forms.
Affidavit of Service-The Affidavit of Service tells everyone about the service of the papers. It says:
- What papers were delivered
- Who delivered the papers
- Where the papers were delivered
- Date and time when the papers were delivered
- How the papers were delivered
- If given to someone, a description of the person
- If papers were mailed, when and how
The Affidavit must be signed by the process server in front of a notary public. After the Affidavit of Service is done, it must be filed with the Court.
Filing the Affidavit of Service-Proof that legal papers were delivered must always be given to the Court. If the case has started already, the original Affidavit of Service is filed when the original legal papers are given to the Court. The rules are different for filing an Affidavit of Service when starting a case.
When a landlord-tenant case is started, the Affidavit of Service must be filed three days or less after personal delivery or mailing to the respondent.
In other cases, if the papers are served by personal delivery, there is no set time limit to file the Affidavit of Service. Defendant’s Time to Answer starts to run when he or she is handed the papers. If the papers are served by substituted service or conspicuous place service, service is not finished until the Affidavit of Service is filed with the Court. If service is not finished (completed), the defendant’s time to answer the Summons and Complaint does not start to run. In the Supreme, County, and City Courts, the Affidavit of Service must be filed by 20 days or less from the date the papers were left or mailed whichever is later. Service is finished 10 days after the filing and the defendant’s time to Answer starts to run. In the District, Civil, Town, and Village Courts, the defendant’s time to Answer starts to run from whenever the Affidavit of Service is filed.
There are many time periods that don’t start to run until an Affidavit of Service is filed with the Court. For example, the time to appeal does not start to run until the Affidavit of Service for the Notice of Entry is filed with the Court.
If Papers Are Not Delivered The Right Way– If legal papers are not delivered the way the law says the papers may not count. For example, the Court may not read opposition papers to motion if the papers were not served. If papers starting a case are not delivered the right way the defendant or respondent can tell this to the Court in the Answer or on the court date. This is a defense of the case. The defendant or respondent can ask the Court to dismiss the case for bad service. If the Judge decides that the service is bad, the case is over. But, the plaintiff or petitioner can start the case again.
Common Examples of Bad Service
Legal papers must be given to you the right way. This is called service. The person that served the papers must swear how they were given to you in an Affidavit of Service.
Below are examples of bad service of legal papers. Read the explanations carefully to see if any of them apply to you. Everyone’s case is different. Some of the examples may apply to you and most may not. Service may have been bad for a reason that is not listed below.
I never got any papers starting the case
You must be given papers that start the case, like a summons or a petition, in the right way. You can get them when someone gives them to you, or leaves them with someone else for you, or leaves them on your door. If you found out about the case because there is already a judgment against you and you didn’t get the papers any other way, this was bad service.
The person suing me handed me the papers
Legal papers must be served by someone who is 18 years or older and is not the person suing you. If the person suing you gave you the papers or gave them to someone else to give to you, this is bad service.
The papers were left with someone who was not likely to give them to me
The person suing you can give the papers starting the case to someone else to give to you. But, only some people can be given the papers to give to you. You must have a relationship with the person given your papers, like someone you live with, or someone you work with. If the papers are left with a doorman, or a child, or a mentally disabled person, this is bad service.
I only got the papers in the mail
In most cases, a lawsuit can’t be started by mailing the papers. The person serving the papers must try to give them to you in person before mailing any papers. If the server was unable to find you, then you should have gotten another set of papers left with someone for you, or a set of papers on your door. If all you got was one set of papers in the mail, this is bad service.
I only got one set of papers on my door and no papers were mailed to me
The server can leave a set of papers on your door after trying to serve you in person. That is O.K. But, if the server leaves papers on your door, he or she must send you another copy of the papers in the mail.
I was given the papers on a Sunday
It is a bad service if you were given papers on a Sunday.
Nobody tried to give me the papers personally
The server must try to give you the papers personally before serving them in a different way. If you are always home and the papers were left on your door or given to someone else, this is bad service.
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