By: Akanksha A. Panicker
The Attorney General of New York is the chief legal officer of the U.S. state of New York and head of the state government’s Department of Law. It advises the executive branch of state government and defends actions and proceedings on behalf of the state. The degree to which the Attorney General directly gives legal counsel to the government differs by state and particular office-holder, depending on past legal career level and significance.
The Attorney General has ministerial responsibilities for legal matters; the ministerial portfolio is essentially similar to that of a Minister of Justice of several other nations. Considering the influx of claims and applications that pour into the Attorney General’s office every day, service of process is an imperative part to prevent the case from being dismissed or not heard at all.
[1.0] HOW TO ENSURE SERVICE UPON A GOVERNMENTAL AGENCY:
New York City should be served by personal delivery to the Corporation Counsel or any person designated to receive the writing process and must be filed in the County Clerk’s Office, New York County. Personal service on the State of New York is required to be made by delivering the same to an Assistant Attorney General at the Attorney General’s office or to the Attorney General in the State, wherein the summons should be provided.
This is also held to be true in a situation where an officer is issued solely in an official capacity. For an agency, this would mean that personal delivery to the officer or the agency’s chief executive officer would have to be committed on a personal delivery basis. However, service on said officer may also be made by [A.] mailing of the papers by certified mail, return receipt requested, the officer or chief executive officer of the agency, or [B.] personal service the State of New York. However, service on a corporation can also be made by delivering the process to an officer, director, or general agent, or cashier or assistant cashier, or any other agent authorized by appointment or by law to receive service.
[1.1] SERVICE BY MAIL
Service by certified mail cannot be complete until the summons are received in the agency’s principal office. This also holds until personal service upon the state in the office’s manner is concluded.
Service by certified mail must be addressed suitably on the front of the envelope and should bear the mail’s legend being urgent and legal. After this has been completed, the service may be accepted. The chief executive officer of every such agency should designate at least one person, not counting themselves, to accept personal service on behalf of the agency. This procedure is held to be true in any state agency. As an alternative to personal service methods, documents may be served by the plaintiff or any other person by mailing to the person or entity to be served. Mail-in this context means that first-class mail must be employed with postage prepaid, a copy of the documents together with two copies of a statement of service by mail, and acknowledgment of receipt.
- SERVICE OF PROCESS DURING THE CORONAVIRUS
Like the rest of the world, New York continues to withstand the coronavirus’s pandemic (COVID-19). New York citizens should prepare themselves by being updated as to legal and safety processes during this time. In addition to being knowledgeable about safety, New Yorkers must also be cognizant of their rights and responsibilities and the services accessible to them so that they can remain protected from further exposure as well as ensure a return to normalcy through following protective guidelines to counter the unprecedented health and safety threat to the public.
It is the people’s officials’ responsibility to lead them in taking measures for defense against the virus. Consequently, while personal service has hitherto been preferred, in light of altered circumstances and the risks presented by the COVID-19 pandemic, the Attorney General has since accepted electronic service of summons and complaints. This might be acceptable when the named party is the Attorney General, the Department of Justice, or an official or employee of the Department of Justice in their official capacity.
The policy will not immediately be nullified upon lifting of emergency provisions. The minimal contact guidelines are to stay in effect ninety days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted. This would require the service via mail to follow the procedure in the format that is traditionally demanded. Failure to do so could result in rejection of the service, insofar as the Attorney General reserves the right to reject service of process in civil actions where a defect in service is found. If the summons or complaints in a civil action are made, it must be to the Attorney General’s official email address. This rule is inflexible without any express and written consent that exonerates it. Said consent might be presented electronically.
Like service by personal delivery, the Attorney General still functions by adhering to strict hours. Same-day delivery for electronic service made after 5:00 p.m. cannot be considered acceptable and will instead be carried onto the next day. This means that any service that abrogates the 5:00 p.m. deadline is deemed to be a part of the next business day, i.e., is accepted at 9:00 a.m. on the next day.
[2.0] HOW TO SERVE PROCESS ON THE OFFICE OF THE ATTORNEY GENERAL IN PERSON
Any individual may effect service on any office of the Attorney General. The addresses and hours of operation of the Regional Offices are dependent on the area. However, personal service may be made by serving any member of the Managing Attorney’s office staff, guided by signs to direct the same. Personal service may be made by delivering the summons to an assistant attorney-general at the attorney general’s office or to the attorney-general within the state.
Additionally, defendants are obligated to provide notice following the filing of a proposed class action settlement are required to apply to an appropriate federal officer, being either [A.] the Attorney General; or [B.] a depository institution of the state, a depository institution holding company, a foreign bank, or a non-depository institution subsidiary. This is required to be submitted if the institution being filed against is a Federal depository institution. However, the settlement may be filed electronically during the COVID-19 emergency.
[2.1] UNDERSTANDING SERVICE IN TERMS OF A CLAIM OR A NOTICE OF INTENTION TO FILE A CLAIM OR ACTION FOR DECLARATORY JUDGMENT.
A claim is the first official notice of the case that the defendant will have. For this reason, there are special requirements for serving the claims. Section 11 of the Court of Claims Act provides requirements before service. However, the claim or notice of intention to file a claim must have [A.] the post office address of each claimant and [B.] the name, post office address, and telephone number of the attorney claimant. It must be remembered here that if there are multiple causes of action that the claimant is proceeding under, each one should be separately stated and numbered. The notice of intention itself should be served personally or by certified mail, return receipt requested, upon the Attorney General within the requisite timeframe for service.
As well as communicating details as to damages, it is also required to have it shall contain a specific description of the property giving its location and quantity in claims for the temporary or real appropriation of property. The original and all filed copies of such claim shall have annexed a duplicate of the official appropriation map or maps filed in the office of the commissioner of the department involved in the taking, covering the property for which the claim is filed.
To clarify the procedure in the current framework of COVID-19, it is ultimately important to remember that service by certified mail, return receipt requested shall not be complete until the claim or notice of intention is received in the office of the Attorney General. In all actions where a notice of intention to file a claim has been served, the claim shall state the date of service upon the Attorney General.
[2.2] REQUIREMENTS FROM PROCESS SERVERS
In addition to the other remedies provided, the Attorney General’s application may be made in the name of the people of the state of New York addressed to a court or justice having jurisdiction by a special proceeding to issue an injunction. This would require notice to be delivered to the defendant that consists of at least five days.
This notice must be delivered to restrain the continuance of these violations. The Attorney General is required to forward this application so that the court of justice may decide whether the defendant is in violation and whether an injunction or relief is required sans immediate proof of injury or damage. If it is the case of a violation, a civil penalty of a thousand dollars or less may be awarded per violation within the course’s jurisdiction.
It must be noted herein that no authority can bring a claim holding a process server or agency liable for any action that corresponds to the violation. This immunity is not ironclad, as the process server or agency needs to demonstrate a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error. Due diligence must have been performed, the requirement of due diligence is paramount, and procedures in avoidance of the error should have been undertaken in this regard.
In connection with any such proposed application, the Attorney General is authorized to take proof and determine the relevant facts and issue subpoenas by the civil practice law and rules.
All the records required to be maintained should be retained by a process server or process serving agency for a minimum of three years. They must be available for inspection by the Attorney General. However, the Attorney General should impart 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.
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1. Located at 100 Church Street, New York, New York)
2. N.Y. Exec. Law § 62
The attorney-general may appoint such assistant attorneys-general, deputy assistant attorneys-general, and attorneys as he may deem necessary and fix their compensation within the amounts appropriated, therefore. Whenever deputy or deputy attorney-general is referred to or designated in any law, contract, or document, such references or designations shall be deemed to refer to and include assistant attorneys-general, deputy assistant attorneys-general, or attorneys appointed by the attorney-general
3. Person designated by the chief executive officer to receive service
4. NY CPLR § 307 (2012)
5. NY CPLR § 311 (2015)
6. The term “principal office of the agency” refers to the location at which the office of the chief executive officer of the agency is generally located.
7. This is deemed to refer to any agency, board, bureau, commission, division, tribunal, or other entity that constitutes the state for purposes of service
9. The OAG may be personally served at:
- Albany: Empire State Plaza
Justice Building, 2nd Floor
Albany, NY 12224
Hours of Operation: 9 AM – 5 PM
- New York City: 28 Liberty Street, 16th Floor
New York, NY 1000 Hours of Operation 9 AM – 5 PM
10. NY CPLR § 307 (2012)
§307. Personal service upon the state.
Personal service upon the state shall be made by delivering the summons to an assistant attorney-general at the attorney general’s office or to the attorney-general within the state.
11. CAFA Coordinator
Office of the Attorney General
28 Liberty Street, 15th Floor
New York, NY 10005
12.CAFA Notices during the COVID-19 crisis may be effected by email: CAFA.Notices@ag.ny.gov
13. There shall be included in each claim, or attached thereto, a schedule showing in detail each item of damage claimed and the amount of such item
14.NY Gen Bus L § 89-V (2015) § 89-v Gen. Bus. Enforcement by Attorney General.
15. 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.
16. Examples of a bona fide error include, but are not limited to, clerical calculation, computer malfunction, and programming and printing errors
17. “N.Y. Gen. Bus. Law § 89-GG.