Instructions for Service of Process: New York Secretary of State

Two businesspeople, or business person and client, with document at office

The Secretary of State is the statutory agent for service of process on most business corporations, not-for-profit corporations, limited liability companies, limited partnerships, and limited liability partnerships formed in this State (such entities are often referred to as “domestic entities”) and for most corporations, not-for-profit corporations, limited liability companies, limited partnerships, and limited liability partnerships which were formed in jurisdictions other than this State and which filed applications for authority to do business or conduct activities in this State (such entities are often referred to as “authorized foreign entities”). These instructions are intended to guide Process Servers who wish to serve the Secretary of State as agent for a domestic or authorized foreign entity.

Please note that the Department of State cannot provide legal advice. Process Servers are encouraged to consult with their own attorneys for advice on any matter discussed in these instructions or regarding any other aspect of service of process.

1. The New York Process Service 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 name(s) of other entity(ies). The Process Server, and not the DOS, is responsible for identifying precisely which entity is intended to be served.

The Process Server may provide DOS with the presumed name of the entity intended to be served and request DOS to search its official database for entities with that name. DOS will provide the Process Server with a list of entities having names that are the same as, or similar to, the name provided by the Process Server. It is the Process Server’s responsibility to determine which entity (if any) on that list is the entity that is intended to be served.

•If the entity’s actual name intended to be served significantly from the presumed name originally provided by the Process Server, the entity intended to be served may not appear on the search result list provided by DOS.

NB: A Process Server with access to the official DOS database may perform his or her own search.

2. The New York Process Service must obtain the “DOS Search Page(s)” 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” (and, if applicable, the “Filing History Information” and/or the “Name History Information”) for that entity. The “Current Status Information” (and, if applicable, the “Filing History Information” and/or the “Name History Information”) are referred to as the “DOS Search Page(s).”

A Process Server with access to the official DOS database may print his or her own copies of the DOS Search Page(s) for the entity he or she intends to serve.

3. The New York Process Service 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 the 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. (A copy of the “Service of Process/Notice of Claim Cover Sheet ” is annexed to these Instructions.)

The Process Server will be required to staple the DOS Search Page(s) to the Service of Process Cover Sheet and to staple the Service of Process Cover Sheet (with the DOS Search Page(s)) to the process being served.

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(s) stapled thereto) and the applicable fee to an authorized person at DOS’s office at One Commerce Plaza, 99 Washington Avenue, 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. By serving process under such a statute, the Process Server is making an implied representation to DOS that the copies of the process delivered by the Process Server are, in fact, duplicate (i.e., identical) copies of the original process. DOS relies on this implied representation, and the DOS does not undertake to make a line-by-line, page-by-page review of the copies delivered to it to determine if the copies are, in fact, duplicates of each other. Nevertheless, if it becomes apparent to DOS that copies of the process that have been delivered to DOS are not duplicates of each other, DOS will reject the service:

•If the copies delivered to DOS are not duplicate copies, the service will not comply with the applicable statute, and the service will probably be invalid; this is true even if DOS fails to notice the inconsistency and “accepts” the service. Accordingly, Process Servers should make sure the copies delivered to DOS are, in fact, duplicate copies.

•In most cases, legal action in New York State is commenced by the filing of the summons (“process”) in the Court Clerk’s office. Copies of the process are then served on the defendants. If the copies to be served are altered (such as by changing the name of a defendant), those copies may no longer be considered true copies of the original process, and the service of the altered copies may not be valid. DOS cannot provide legal advice on this matter or any other aspect of service of process; Process Servers are urged to consult with their own attorney and/or with the attorney for the party on whose behalf process is being served before making any alteration to the copies of the process to be served.

5. DOS will presume that the entity intended to be served the entity identified in the DOS Search Page(s) 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. In fulfilling this obligation, DOS mails the process to the entity identified by the Process Server. Please note that if the Process Server identifies the wrong entity:

•the entity intended to be served will not receive the DOS mailing,

•the Court will not obtain jurisdiction over the entity intended to be served, and

•service will not be effective as against the entity intended to be served.

In light of the foregoing, it is critically important that the Process Server (1) correctly identify the entity intended to be served and (2) provide DOS with a clear and unequivocal indication of the identity of the entity to be served.

DOS accepts service upon a domestic or authorized foreign entity merely because the name of the entity as it appears on the DOS Search Page(s) does not match the name as it appears on the Service of Process Cover Sheet and/or the name as it appears on the process being served. DOS will not reject service upon a domestic or authorized foreign entity merely because the incorrect section of the law is indicated. However, to provide certainty, to both the Process Server and DOS, about the entity’s identity to be served, DOS will presume that the Process Server intends to serve the entity identified in the DOS Search Page(s) attached to the process at the time of service. DOS will presume that the Process Server intends to serve under the law applicable to the entity identified in the DOS Search Page(s).

This means thatDODOS will accept • service all of the entity identified in the DOS Search Page(s), under the section of law applicable to that entity,

•the receipt issued by DOS will indicate that service was made on the entity identified in the DOS Search Page(s), pursuant to the section of law applicable to that entity,

•DOS will mail a copy of the process to the entity identified in the DOS Search Page(s) at the address specified by that entity for that purpose, and

•DOS’s records will indicate that service was made on the entity identified in the DOS Search Page(s) under the section of law applicable to that entity.

The foregoing will apply even if:

•the entity specified in the DOS Search Page(s) is not the same entity indicated in the Service of Process Cover Sheet and/or in the process, or

•the name of the entity specified in the DOS Search Page(s) differs in any way (e.g., in spelling, in the indicator [Inc., Corp., LLC, etc.] used, in the use of abbreviations versus spelling out of words in full, etc.) from the name of the entity as specified in the Service of Process Cover Sheet and/or in the process, or

•the “name of the entity or person to be served” section of the Service of Process Cover Sheet is left blank, or

•the process names the entity to be served by a fictitious (“John Doe”) name, or

•the Service of Process Cover Sheet indicates that service is being made pursuant to a section of the law that does not apply to the entity named in the DOS Search page(s).

For information on serving legal papers, contact our New York Process Service department at (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

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