Without proper service, a suit is impossible. The court needs to acquire personal jurisdiction over a defendant, which cannot be done without proper process service. The CPLR 308 sets forth several methods by which service of process may be effectuated on an individual.
[1.0] OVERVIEW AS TO THE CPLR
The CPLR provides information as to personal service upon a natural person. This could consist of personal delivery, delivery by mail, or through an agent.
Personal delivery refers to the highest form of service, wherein service is provided within the state to the actual person to be served. Personal service is a part of the actual service, wherein the complaint or the summons is delivered in hand to the respondent. Personal service forms a triad of basic delivery with substituted service and constructive service.
Substituted service in the present case refers to delivery to the respondent’s residence as provided by an agent or an individual authorized to carry said service forward. Within substituted service, the delivery is done through another individual, rather than through publication or via a newspaper. Substituted service needs a two-step procedure to be fulfilled, wherein the papers are delivered within the state to a person of suitable age and discretion. This individual can be in the actual place of business, or they can also be at the dwelling place or usual place of abode of the person being served. However, if locating the defendant and presenting them with the service is an issue, substituted service is also possible by mailing the papers by first-class mail to the person. The two service methods are not mutually exclusive and can be done within twenty days of each other.
What about service by another individual? Delivering service by an agent within the state is delineated by rule 318, but this service method is not viable for a divorce case.
What if the defendant cannot be located from their past residences at all? Here is where nail and mail service comes into play. It functions as a last resort, done after personal and substituted service has failed. Nail and mail are self-explanatory, wherein the papers to be served are either [very literally] nailed or affixed to the door of the place of business, dwelling place, or abode of the individual or are mailed to them via first-class mail to their place of business or last known residence. Nail and mail service is done only after personal and substituted service has failed and is done inconspicuously. It does not indicate that the matter is concerned in a legal matter, even if it is marked ‘personal and confidential.’ Both processes of nail and mail services are done within twenty days of each other.
What consists of personal delivery, however? In cases of whether a defendant’s personal family comprises a personal delivery, it is held that service is upheld even if not directly received by the defendant themselves. However, this might not be held in all the states, despite the service of process under CPLR 308(2) requiring delivery of the process to “a person of suitable age and discretion.”
[2.0] CPLR 308(1)
CPLR 308 (1) says that personal service is effectuated by delivering the summons within the state to the person to be served. While this section’s interpretation is broad, it must be remembered that too much leeway given in the delivery of service means that the due process needs as embodies the statute will not be satisfied. Of course, it can be argued that any means of service that results in the defendant showing up in court is thus allowed, and the mere fact of their appearance is enough to prove that the summons’ service was adequate. Some justifications fall into a catch-22, wherein their presence in the court automatically nullifies the defendant’s gripe against improper service.
The spotlight must shift as to the goal of service. Rather than merely delivering the service in its most superficial form, the service’s goal needs to notice that is reasonably calculated to reach the interested party. Consequently, the burden shifts from merely delivering service to ensure that the defendant can defend themselves in court. This means that the defendant is justified in objecting to haphazard service that was not instrumental in protesting the means of service. There needs to be checks and balances to prevent shoddy service from interfering with due process requirements.
[3.0] CPLR 308(2)
Under CPLR 308(2), a summons may be delivered within the state by any individual of ‘suitable age or discretion at their actual place of business, dwelling place, or usual abode. There has been quite a significant discussion about the difference between ‘dwelling place’ and ‘residence.’ However, most courts have interpreted a dwelling place to be broader than a residence. Considering that residence usually refers to individuals who have been domiciled in that particular region and actively live in that abode, it is understandable why ‘dwelling-place’ thus refers to any temporary residence like a frequented hotel. However, it must be remembered that service to the defendant’s last-known address does not constitute valid service if the plaintiff knew that the defendant did not reside there any longer.
In conjunction with delivery to the individual, the summons must then be mailed by first-class mail. It is standard procedure under the CPLR 308(2) to require this mail to be sent in an unassuming envelope to the individual’s actual place of business. While the envelope itself needs to be presented as if it is not an official communication, it needs to be marked ‘personal and confidential’ nonetheless to prevent it from being overlooked. So that individuals do not voluntarily ignore the mail or destroy the same, the envelope must be inscrutable about whether it originates from an attorney or concerns an action against the person served. The statute is clear that this form of service requires both deliveries to the ‘person of suitable age or discretion’ and the service by mail to be done simultaneously, with a margin of 20 days to accomplish the same. Once both of these steps have been completed, proof of service would have to be filed with the court clerk to actually complete service.
This procedure under CPLR 308(2) is applicable for all actions that require service except matrimonial actions, which require service to be made according to the Domestic Relations Law.
The second point of discourse around service under CPLR 308(2) is the ‘suitable age and discretion.’ The term may have been left intentionally broad to prevent discrimination and prejudice, but this ambiguity has led to a barrage of accompanying questions. To be an adequate substitute service under C.P.L.R. 308(2), the substitute served must be of “suitable age and discretion.” “Suitable age” is not present where a small child is served, but there is no rule against serving a minor, and service has been approved on teenagers, the question being whether the child is mature enough to understand the importance of transmitting court papers
[4.0] CPLR 308(3)
Under CPPLR 308(3), service through an agent is deemed to be appropriate. Delivering the summons to be issued through an agent authorized to carry out said service follows the requirements of diligence as enumerated in the preceding provisions. This may be equated in understanding with a registered agent for a corporation, who is an individual authorized to receive legal correspondence on behalf of the business entity within the state in which the agent’s address is located. The individual agency comes into play once the agreement is filed in the office of the county’s clerk.
The registered agent is responsible for accepting legal documents that are served for any natural individual as long as the agreement is entered into on paper, executed, and acknowledged in the same manner as a deed, with the consent of the agent endorsed. However, service of process via an agent cannot be held for divorce proceedings as per section 232(a) of the DRL.
[5.0] CPLR 308(4)
CPLR 308(4) is affectionately known as the ‘nail and mail’ service. The last resort’s service is done when service by delivery cannot be done by due diligence.
It essentially obtains personal jurisdiction over the defendant by affixing the summons to the defendant’s former residence but would require adequate care to be utilized to identify the defendant’s actual place of business or dwelling place. Due to the narrow interpretation of CPLR 308(4), ‘nail and mail’ is required to be affixed upon the actual dwelling place but can be circumvented by proving that the defendant misrepresented their correct address to perform a jurisdictional challenge. However, 308(4) is the shakiest of the service provisions and can often cause further litigation.
Like CPLR 308(2), a copy of the summons is required to be affixed on the defendant’s abode but also must be mailed to the individual wherever possible to be considered fulfilled service.
Service of process under the CPLR follows through due process requirements, providing individuals with recourse as to shoddy service or any other pitfalls. Subversion of service is a disruption of the administration of justice and is heavily curtailed under this provision. Service of process must be filed with an affidavit, with true and verifiable details about the delivery. Falsification of said details could consist of perjury.
Capers like ‘sewer service’ can thus not be held valid service under these provisions and can be considered contempt of the court and may result in the offending attorney being disbarred.
For more information on serving legal papers, contact Undisputed Legal our 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.
1. “Rule 4 – Summons – Federal Rules of Civil Procedure.”
2.Matter of Mestecky v City of New York 2017 NY Slip Op 08162
3.Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 318-(1950)
4.Karlin v Avis F. Supp. 1325 (E.D.N.Y. 1971)
5.DRL 232: Notice of nature of matrimonial action; proof of service
a. In an action to annul a marriage or for divorce or separation, if the complaint is not personally served with the summons, the summons shall have legibly written or printed upon the face thereof: “Action to annul a marriage,” “Action to declare the nullity of a void marriage,” “Action for a divorce,” or “Action for a separation,” as the case may be, and shall specify the nature of any ancillary relief demanded. A judgment shall not be rendered in favor of the plaintiff upon the defendant’s default in appearing or pleading unless either (1) the summons and a copy of the complaint were personally delivered to the defendant; or (2) the copy of the summons (a) personally delivered to the defendant, or (b) served on the defendant under an order directing the method of service of the summons by the provisions of section three hundred eight or three hundred fifteen of the civil practice law and rules, shall contain such notice.
b. An affidavit or certificate proving service shall state affirmatively in the body thereof that the required notice was written or printed on the face of the copy of the summons delivered to the defendant and what knowledge the affiant or officer who executed the certificate had that he was the defendant named and how he acquired such knowledge. The court may require the affiant or officer who executed the affidavit or certificate to appear in court and be examined in respect.
6. So named on the theory that the server tossed the papers into the sewer and did not attempt to deliver them to the proper party