By: Akanksha A. Panicker
New York process service is stringent and comprehensive, and each jurisdiction has its own respective rules and guidelines. Often, regulations overlap with the service offered by various kinds of service providers. The Secretary of State is the appointed legislative representative or statutory agent in New York for service of process
[1.0] HOW TO SERVE PROCESS ON THE SECRETARY OF STATE
Service of process on the New York Secretary of State as an agent of a corporation or other business entity may be accomplished by serving an authorized person at the New York Department of State’s office. The process is required to be brought to the Customer Service Counter located on the 6th Floor based on the Secretary of State’s instructions.
Only ‘process’ may be served on the New York Secretary of State in their capacity as agent. ‘Process’ in this context refers to judicial process and all orders, demands, notices, or other papers required or permitted to be personally served on a domestic or foreign entity, to acquire jurisdiction of such entity in any action or proceeding, civil or criminal, whether judicial, administrative, arbitrative, or otherwise, in this state or the federal courts sitting in, or for, this state. It must be noted that although the service of process has been delineated under the NY Business Corporation Law, New York State law as it has been laid down for service on the New York Secretary of State does not also prevent other methods or manners of service. It allows for service to be rendered via other means as long as it has been cleared through the relevant legislative and statutory requirements.
Service of process can occur upon a domestic or authorized foreign corporation, limited liability company, limited partnership, or limited liability partnership. However, this would mandate that two copies of the process have to be personally served on the New York Secretary of State. However, these copies could also be served upon an individual who has been specifically authorized to do so at the office. This does not mean that service may be done in any other form apart from personal delivery, as service by mail is not permitted. The statutory fee for the serving process is USD 40.
[1.1] SO WHAT HAPPENS IF THE CORPORATION IS UNAUTHORISED?
Service of process upon an unauthorized foreign or suspended corporation, limited liability company, limited partnership, or limited liability partnership has a different procedure to be completed adequately. If service must be initiated on a corporation that fulfills the above criteria, one copy of the process is required to be personally served on the New York Secretary of State.
To serve process on the New York Secretary of State as a statutory agent of any person, corporation or other business entity, the Process Server will be required to [A.] identify the entity being served, [B.] properly obtain the DOS search pages for the entity that is to be served, [C.] appropriately fill out a service of process or notice of claim cover sheet and [D.] personally deliver the process with the requisite documents stapled to the same to an authorized individual at the office of the NY Department of State.
In case the Secretary of State themselves are embroiled in an action or proceeding, the requisite service is achieved by serving the deputy secretary of state, as they have been authorized to fulfill the same. The secretary of state is enabled to accept properly transmitted notices of claims on behalf of a public corporation, with the same effect as if the service has been directly levied upon a public corporation. Certain conditions for the same are active, however, wherein a receipt of the notice must be issued upon receipt of service or that the public must be notified on the website of the secretary of the state.
Of course, apart from quintessential law methods, service against a public corporation can be fulfilled via a notice of claim. The New York Secretary of State is authorized to accept the same as the public corporation’s statutory agent, under Section 53 of the General Municipal Law. As the agent of said corporation, it is acceptable to serve any authorized individual at the DOS office. Like other forms of service, it is necessary to put forth two copies of the notice of claim, along with a fee of USD 250.
Service upon a public corporation that has engaged in the filing of a Certificate of Designation for Service of Notice of Claim would mean that the DOS is required to serve only one copy of the Notice of Claim to the public corporation that is intended to be served at the address provided by them. It must be remembered that the Notice of Claim server is responsible for where the DOS sends the process. If the server identifies the wrong public corporation, then [A.] the public corporation intended to be served will not receive the DOS mailing, and [B.] service will not be effective as against the public corporation intended to be served. In the case of service upon a public corporation that has not filed a Certificate of Designation for Service of Notice of Claim, DOS does not send a copy of Claim’s Notice to the public corporation served.
[2.0] SERVICE OF PROCESS ON THE SECRETARY OF STATE AS AGENT OF DOMESTIC AND AUTHORIZED FOREIGN ENTITIES
To begin the entire service chain, the Process Server should first decide who the target receiver is. This is because more than one million domestic and international companies, alliances, and unincorporated organizations have been documented with the Department of State. In most circumstances, the name of the organization expected to be served is analogous to other organizations’ names. The process server, not the DOS, is liable for deciding the service user is intended to accept documents. If a domestic or authorized foreign corporation has no such address on file, the secretary of state can mail a copy to the care of any director named in its certificate of incorporation at the director’s address stated. If the corporation is authorized but foreign, the copy’s mailing would be done to its office’s address within this state on file in the department.
[2.1] IDENTIFYING THE CLIENT CORPORATION FOR SERVICE
The Process Server can supply the DOS with both the client company’s identity being handled and the presumed identification of the agency to be served. The DOS server may generate a list of organizations with equivalent or identical names to the one submitted by the process server. It is indeed the duty of the Process Server to decide which organization is the desired entity to be served. If the organization’s real name originally planned to be served from the presumed name presented by the Process Server, the actual entity would likely not be included in the search results.
A process server with access to the official DOS database is qualified to perform its own search.
[2.2] OBTAINING THE STATUS INFORMATION OF THE CORPORATION
The role of the process server is far from over after merely locating the entity to be served. Once the entity for service has been determined, it is necessary to obtain the current status information for the same. It is also necessary for process servers to collect the relevant information for the organization they are servicing from the DOS search pages. When confirmed by the process server, the defendant will be provided with the corporation’s ‘Current Status Information.’
Any skilled process server with access to the official DOS database that permits them to print out the initial DOS search pages may perform the search themselves. 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, how the applicable fee is being paid, and the name and address of the Process Server.
[2.3] REQUIREMENTS THAT THE SERVER MUST COMPLETE
The Process Server must hand-deliver two duplicate copies of the process being served. These copies must be attached 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 requirement for the same means that all personal delivery that constitutes service would have to include both the copy and the fee if it is levied on a domestic or authorized foreign entity. These stipulations are non-negotiable since the DOS is allowed to reject service if the copies are tampered with, altered, or are not duplicate copies in the first place.
Furthermore, the DOS will presume that the entity intended to be served the entity that has erstwhile been identified in the DOS Search page stapled to the process documents served. The necessary due diligence is required to be conducted by the process server themselves. The DOS is merely obligated to mail one copy of the process to the entity served at the provided address. In case of a mistake in identification, service cannot be affected.
It cannot be stressed enough that the liability for the process falls upon the server. The DOS presumes intention on the part of the process server to furnish the documents to the entity identified in the DOS Search Page attached to the process at the time of service. This holds even if the name does not match the name as it appears on the Service of Process Cover Sheet.
[3.0] ISSUES THAT COULD BE FACED IN SERVICE
The Secretary of State is the sole statutory agent for service of process on most corporate entities, not-for-profit corporations, limited liability companies, limited partnerships, and limited liability partnerships established in this State. However, it is also responsible for the process of most corporations, not-for-profit corporations, limited liability companies, limited partnerships, and limited liability partnerships which have been created under jurisdictions besides this State who submitted applications for permission to do business or perform operations in this State. such entities are often referred to as ‘authorized foreign entities.’
In New York, the corporate defendant has only twenty days ‘after service’ to submit a response to the papers undertaking the litigation against it, which could fall short of enough time to find a lawyer and to bring the answer together. When service is rendered on the Secretary of State or an underling in the Secretary’s office, the Secretary of State is obliged to deliver a copy of said papers by certified mail directly, return receipt requested, addressed to the corporation at the postal service address mentioned in the department of the state-designated for such a purpose. Therefore, although the secretary of state’s office would do its task and promptly send the papers to the entity by U.S. mail, some very pivotal days out of the twenty will already have been lost in the mailing process alone.
Since New York legislation forbids a domestic company from being created or a foreign corporation from being allowed to do business in New York until its certificate of incorporation or application for authorization designates the secretary of state as the corporation’s agent for service of process, there is little that a corporation that does business in New York may do with making the secretary of state serve as its designated agent for service of process in New York. But if the corporation is uncertain regarding obtaining process promptly, the company can, at its discretion, then appoint a registered agent in New York, acting as an additional agent against whom process against the corporation can be served.
The registered agent so appointed must be either a natural person who is a citizen or has a work address in New York or a domestic entity founded in New York or even a foreign corporation approved to do business in New York. If the corporation designates a registered agent in New York, perhaps the corporation could obtain process more rapidly, but only because the plaintiff prefers to serve the registered agent instead of the state secretary. The main drawback is the additional burden of employing an outside corporation to serve as the corporation’s resident agent in New York if it chooses to go that route.
For information on serving legal papers, click here or call (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 Frequently Asked Questions About Process Servers
1. One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231
2. Division of Corporations, State Records and Uniform Commercial Code, NYS Dept. of State, https://www.dos.ny.gov/corps/faq_service_of_process.page.asp (last visited Jan 18, 2021)
3. Service of process is accepted under the following sections of New York State Law: Sections 306, 306-A, and 307 of the Business Corporation Law; Sections 306 and 307 of the Not-for-Profit Corporation Law; Sections 301-A, 303, and 304 of the Limited Liability Company Law; Sections 121-104-A, 121-109, 121-1505, and 121-1506 of the Partnership Law
4. See §102(a)(11) of the Business Corporation Law, §102(a)(12) of the Not-for-Profit Corporation Law, §102(x) of the Limited Liability Company Law, §121-101(o) of the Partnership Law
5. New York Consolidated Laws, Business Corporation Law – BSC § 306. Service of process
(a) Service of process on a registered agent may be made in the manner provided by law for the service of a summons as if the registered agent was a defendant.
(b)(1) Service of process on the secretary of state as an agent of a domestic or authorized foreign corporation shall be made by personally delivering to and leaving with the secretary of state or a deputy, or with any person authorized by the secretary of state to receive such service, at the office of the department of state in the city of Albany, duplicate copies of such process together with the statutory fee, which fee shall be a taxable disbursement. Service of process on such corporation shall be complete when the secretary of state is so served. The secretary of state shall promptly send one of such copies by certified mail, return receipt requested, to such corporation, at the post office address, on file in the department of state, specified for the purpose. If a domestic or authorized foreign corporation has no such address on file in the department of state, the secretary of state shall so mail such copy, in the case of a domestic corporation, in care of any director named in its certificate of incorporation at the director’s address stated therein or, in the case of an authorized foreign corporation, to such corporation at the address of its office within this state on file in the department.
(2) An additional service of the summons may be made under paragraph four of subdivision (f) of section thirty-two hundred fifteen of the civil practice law and rules.
(c) If an action or special proceeding is instituted in a court of limited jurisdiction, service of process may be made in the manner provided in this section if the office of the domestic or foreign corporation is within the territorial jurisdiction of the court.
(d) Nothing in this section shall affect the right to serve process in any other manner permitted by law.
6. or any person authorized by them at the Office of the New York Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231
7. Process should be brought to the Customer Service Counter located on the 6th Floor.
8. The General Construction Law definition of ‘public corporation’ includes municipal corporations, district corporations, and public benefit corporations. It does not include publicly traded corporations.
9. New York Consolidated Laws, General Municipal Law – GMU § 53. Alternative service of notice of claim upon the secretary of state
All public corporations entitled to have served upon them notice of claim as a condition precedent to the commencement of an action or proceeding shall, no later than thirty days after the date upon which this section shall take effect, file a certificate with the secretary of state designating the secretary as the agent for service of a notice of claim and shall in such statement provide the secretary with the name, post office address and electronic mail address, if available, of an officer, person, or designee, nominee or other agent-in-fact for the transmittal of notices of claim served upon the secretary as the public corporation’s agent. Any designated post office address or electronic mail address to which the secretary of state shall transmit a copy of the notice of claim served upon him or her as agent shall continue to be the address to which such notices shall be transmitted until the public corporation sends a notice to the secretary informing him or her of a new post office address or electronic mail address to which such notices shall be transmitted. The initial filing with the secretary of state shall also contain the applicable time limit for filing a notice of claim upon that public corporation. If later changed by statute, a new filing shall be made detailing the new time limit. Any public corporation that does not have a current and timely statutory designation filed with the secretary of state shall not be entitled to the portion of the fee to which it would otherwise be entitled under subdivision four of this section. Failure of the public corporation to so file with the secretary of state will not invalidate any service of a notice of claim upon the public corporation received by the secretary of state.
10. Notice of Claim should be brought to the Customer Service Counter located on the 6th Floor. The Customer Service Counter is open from 9:00 a.m. to 4:30 p.m. Service by mail is not permitted
11. The New York State, Department of State, Division of Corporations, State Records, and Uniform Commercial Code
12. This includes the ‘Filing History Information’ and/or the ‘Name History Information’ ‘Current Status Information,’ as well as any ‘Filing History Information’ and/or ‘Name History Information’ referred to as ‘DOS Search Page(s).’.
13. E.g., Changing the name of the defendant
See, e.g., Rule 312-a. Personal service by mail.
14.Completion of service and time to answer.
- 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 acknowledgment of receipt is mailed or delivered to the sender