Service on a Natural Person – CPLR 308 PDF

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New York Practice Notes from 2021 Course...

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New York Practice 2021! Lecture Notes!

Service on a Natural Person – CPLR 308 • We are talking about is service on a natural/regular person (not a corporation, nor a partnership). • There are 5 different ways that you can make service. Remember that you already started the action and now you have to serve them within the 120days. here is what you have to do within the 120 days under CPLR 308: 1. In hand delivery – hand the summons and complain to the person. You do not have to file proof of service, and what is going to happen is, the D has 20 days to answer a summons and complaint from that time if in service is in NY. This is the only time you have 20 days on a natural person. if serving someone outside of NY it is 30 days. 2. 308 (2) SAD service (Suitable Age Discretion), in another words, if you are suing D and your 5year old comes to the door, then that is not a person of SAD. But if it is D’s 18-year-old daughter then yes, it is ok. (or a brother, or spouse also SAD person). o You can use this service without having to try 308 (1) first. In another words, you do not have to look to serve in hand first, you can go right to 308(2) and serve a person of SAD.  o there are 2 things you have to do: 1st you have to serve a SAD person either at their APOB or actual dwelling or usual abode (in another words, it cannot be the last known residence, it has to be a place where D actually does business or actually resides) and if they are really not there then that does not qualify. o 2nd part is you have to mail to the last known residence or to actual place of business, but the envelope has to be marked personal and confidential, and you cannot indicate that it is from an attorney. o When must you do this? Mailing? Actual service?  You can do them in any order, but they have to be done within 20days of each other. You also have to file proof of service within 20 days of the last event. So, if serving it on a SAD person is the last thing you do, then you have to file proof of service no later than 20days from that event. Or if mailing it is the last

thing you do, then you have to file proof of service no later than 20days from that event. service is complete 10days after filing the proof of service. now, once the service is complete, that is when the time starts to run as to when the D has to answer. NOT BEFORE.  It is 20 days that D has time to answer if it was giving directly to her as in-hand delivery. HOWEVER, if the summons and complaint was giving to someone else in the household then D has 30days to answer. o EXAMPLE: if the professor serves an in-hand delivery and mails out a copy, and files a proof of service, then only after 10 days the service is complete and D’s time running then to submit an answer. 3. 308(4) Nail and mail in order to do this, 1st you have to state that you were unable to serve under 308(1) and/or 308(2).  that is, you were unable to serve in hand delivery, and you were unable to serve it by using SAD. o You also have to show that you tried a few times to serve the D.  if you are processor and you went there multiple times to serve, you tried weekday, weekend, day, night, etc. you have to show due diligence for nail and mail. multiple attempts must be show, prior to actually using nail and mail. And you have strictly comply with this requirements or the case will be dismissed based upon lack of jurisdiction, and if you SOL is expired then there is no 6-month toll. o Feinstein v. Bergner (Ct. of Appeals)  serve here was not valid, because the nail and mail was nailed to the LKR and not the actual dwelling place.  in this case the D did get notice of the suit but that does not matter.  even if the D gets notice and was not prejudice and was aware of the lawsuit and was able to put an answer, it does not matter, it is irrelevant, because jurisdiction is still defective and since the SOL has expired, there was no 205(a) toll.  Nail and mail requires that: Affix the summons and complaint or the special proceeding to the door of APOB or actual dwelling or usual abode, and not the LKR. o This also has a 2-part under 308(4), which you do is:  o 1. Affix the summons and complaint or the special proceeding to the door of APOB or actual dwelling or usual abode AND

o 2. Mail to LKR or to the APOB, marked personal and confidential. And you cannot mention that it is from an attorney o ***MUST do (a & b), with 20 days of each other, in any order and file proof of service within 20 days from whichever is done last (from the last event). o Service is complete 10 days after filling proof of service. D’s time only starts to run after service is complete after 10days. 4. 308(3) Agent  designated agent  the agent has to be appointed for service. o We are not talking about the managing agent of a corporation under 311 service (this is not the same thing). o We are talking about someone who is appointed for purposes of accepting service.  it cannot be any agent, but a specific agent appointed to accept service.  this is more common for corporations. 5. 308(5)  you should never have to use this  this is such manner as the court directs without notice. This is if the service is impracticable under 308(1), 308(2), OR 308(4). o This does not mean that you have to demonstrate due diligence.  it just means that it is impactable, that you just cannot due it. it is not equivalent to diligence. o Service by publication is included.  if you have an automobile case and you cannot find the D, then you can serve the insurance company.  OR it can be alternate service by regular mail, service on the insurance company, service on a family member, service on an employer. o Here is the problem with this if you use this and you serve somebody this way, and you take a default judgment, D can come back later to move to vacate, but if they move to vacate, or move to dismiss based on lack of jurisdiction and SOL is expired, then you do not get the 205(a) toll. So, if the court grants a 305 order for alternate service and turns out that the court as wrong and should not have granted it and the Appellate

Court reverses, then there is a problem. do not use this unless you have no other ways left to use. o this is something you should not have to do, because the methods that we have for finding people is very sophisticated because of the internet and technology. you should have no problem finding anyone these days. o NOTE: that impracticable is not the same as due diligence. o Another method is (Vehicle Traffic Law) VTL 253/254  DO NOT, unless there is no other way. o Service by mail under 312 (a)  where you can serve it by mail, but you have to have the D’s corporation. do not bother with this....