By: Akanksha A. Panicker
Service of process essentially occurs when the party to a lawsuit notifies the other party as to the beginning of legal proceedings. This is done when appropriate notice of initial legal action as ordered by a court or a tribunal is sent to the party so that jurisdiction is exercised and the person has to respond to the proceeding before the court. The ‘process’ part of ‘service of process’ refers to the set of documents that is to be delivered, allowing for notice to be furnished.
Different jurisdictions mean different rules for an appropriate service of process. However, a summons and other related documents must be served upon the defendant personally. Sometimes, this might be relaxed, and service may be provided upon another person of suitable age and discretion at the person’s residence or place of business or employment. Service of process through the mail or through procedural rules and court order may be authorized. A prime example of the same is service by publication, done when an individual cannot be located in a particular jurisdiction. It must be understood that proper service of process establishes personal jurisdiction of the court on the individual served. Failure to participate by means that the person is in default, and relief may be granted to the petitioner. Service of process in cases filed in the United States District Courts is governed by Rule 4 of the Federal Rules of Civil Procedure
[2.1] AFFIDAVIT OF SERVICE
An affidavit of service is basically a proof of service. It’s also called a Return of Service. It essentially acts as a stamp of successful service, so that the process server isn’t responsible for the defendant not showing up in court. Proof of service needs to specify the papers served, the person who was served and the date, time, address, or, in the event there is no address, place and manner of service, and set forth facts showing that the service was made by an authorized person and in an authorized manner
It is a notarized testimony as signed by the server, with details of the time date and manner of service as well as the identity of the person served in order to have record of the service. This is a safeguard against the situation where a party in the case may claim to not have been notified of pending legal action, where the affidavit of service acts as a shield against similar mischief.
Due diligence is another reason why the affidavit of service is important. Even if the process server isn’t able to serve the person, the affidavit can be used to prove due diligence. With said affidavit, the server can prove the numerous attempts they made to contact the individual as well as providing information as to why the service was rendered impossible. The Affidavit of Due Diligence essentially provides that every single step a reasonable person could have undertaken while providing the service in the light of the upcoming legal proceedings was completed. A person can be found guilty of perjury if they submit a false, inaccurate or misleading statement in an affidavit of due diligence
[3.1] FILING AN AFFIDAVIT OF SERVICE
After service of the relevant legal documents, the affidavit form needs to be filed with the local court to confirm proper service of process. As the documents are served and the process is completed, the process server signs the affidavit, has their signature properly notarized, and files the affidavit with the court. A person who signs an affidavit containing false information can be subject to criminal penalties. Similarly, if the affidavit of service form is proven to be fraudulent, the case is liable to be dismissed. The process server can also be the subject of a civil suit for forgery of court documents. It is important to understand that there are laws and court rules that specify the details for how service must be made and what type and form of document must be filed to verify proper service.
It is mandatory that the proof of delivery of the legal papers are given to the court. If the case has already begun, the original Affidavit of Service will be filed with the original legal papers. However, if the case pertains to a landlord-tenant relationship, the affidavit will be filed within three days of personal delivery to the defendant.
Usually, there isn’t really a time limit for the filing of an affidavit of service, and the defendant’s time to answer starts ticking from the moment the papers are served. If the papers are served by substituted service, however, service is not finished until the filing of the affidavit of service in the court.
Without a completed service, the defendant’s time to answer a summons or a complaint does not begin. 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.
[4.1] TYPES OF SERVICE
Personal service must be done through personal delivery, which is delivering papers within New York State to the person to be served. It may also be done through substituted service, which would require that the process is delivered to a person on suitable age and discretion, who is willing to accept the papers, at the actual place of business or abode and also that the papers will be mailed to the person served at the last-known residence or the residence. For this, however, the envelope is required to be marked ‘Personal and Confidential’ with very little indicator that the envelope contains papers about a legal action.
A third method of service is service via an agent. The initiating papers will be delivered within New York State to a designated agent, someone who is chosen by the person to accept process. This, however, does not apply to divorce actions. A legible record is to be maintained by the process server for all services done.
[5.1] EXPLAINING ‘NAIL AND MAIL’ SERVICE
Nail and mail service is a colloquialism. If several genuine attempts at personal or substituted service have failed, the papers may be served by affixing the summons onto the person’s place of business or abode within New York [who is to be served]. If this is not done, the process is to be mailed by first-class mail to their last known place of residence or their actual place of business. If the service has been done through ‘nail and mail’, the affidavit of service must describe in detail the times and places of all previous attempts at service.
To sum up, when service of process has been set in effect, the responsible officer or process server must typically file a return of service or proof of service or affidavit of service with the court (or convey one to the plaintiff to file with the court). The return of service indicates the time and place at which service was effected, the person served, and any additional information needed to establish that service was properly made. It is signed by the process server, and operates as prima facie evidence that service of process was effectively made.
For information on serving legal papers visit www.undisputedlegal.com or call (800) 774-6922 representatives available Monday-Friday 8am.-8pm.EST.
1.2103 N.Y.C.P.L.R. Service of papers.
2.N.Y.C.P.L.R. Rule 312-a. Personal service by mail.
3.N.Y.C.P.L.R.Rule 316. Service by publication.
4.N.Y.C.P.L.R.Rule 306. Proof of service.
5.§ 89-u Gen. Bus. Process server records, penalties.
7.N.Y.C.P.L.R. Rule 318. Designation of agent for service.
8.§ 89-cc Gen. Bus. Process server records.