New York Practice

If within 120 days from properly filing process, it is not served in the defendant or it is not properly served, the plaintiff can make a motion or a cross motion to extend the original 120 day by showing:

1. on good cause shown, which requires a showing of the plaintiffs diligence in attempting to serve the defendant, but due to circumstances beyond the plaintiffs control, service could not be made within 120 days; or

2. "in the interest of justice," which is a more flexible standard, and it does not necessarily require a showing of the plaintiff diligence in attempting to serve the defendant

NY Courts consider six factors:

1. prejudice to the defendant because of late service;

2. whether the SOL on the plaintiffs claim has expired within the 120 day time period, thus the plaintiffs recommencement of the action would be barred if the court denies the plaintiffs motion;

3. whether the plaintiffs claim has merit;

4. the length of the delay (ex. 18 months was an inexcusable delay);

5. the plaintiffs diligence in attempting service; and

6. the promptness of the plaintiffs motion seeking the extension.

No single factor is controlling, the court looks to all six factors

Once process has been filed with the county clerk, then regardless of if the defendant was served inside or outside the state, service is proper only if make pursuant to one of the five prescribed methods of serving process in CPLR Article 3, CID'S Mail.

"C" - Court invented service (CPLR 308(5))

"I" - inland delivery to the defendant (CPLR 308(1))

"D" - due diligence in attempting to first serve the defendant in hand or by serving a SAD person, and then nailing, mailing to the post office proof of service within 90 days (CPLR 308(4))

"S" - delivering process to a SAD person then mailing a copy of process to the defendant, then filing proof of service within 20 days (CPLR 308(2))

"Mail" - mailing process to the defendant, but only if the defendant consents to such service (CPLR 312-a)

Under CPLR 313, CID'S Mail service can be used outside NY, except for service in foreign countries that have signed a treaty with the U.S. (Hague Treaty) on service of process abroad. Under the Supremacy Clause, treaties are the supreme law of the land and they supplant CID'S Mail service, proscribed in the CPLR.

The Hague Treaty allows service to be sent by registered mail to any signatory country that has not rejected this method of service.

If there is no treaty between the US and the foreign country, then CID'S Mail governs and not the foreign country's law on service of process.

This is accomplished by simply handing process o the defendant. If the defendant refuses to take process, simply leave it in the general vicinity and advise the defendant that she is being served.

Service in a "matrimonial action" (CPLR 105(p)) or service on a corporate defendant requires in hand delivery, unless a court orders otherwise or unless the defendant consent to service by mail. DRL 232 (see also - CPLR 308(2) and (4))

Service on a defendant can be accomplished by delivering process to a SAD person at the defendant CURRENT & ACTUAL dwelling place or place of employment.

No case hold that younger than twelve is an acceptable age. Additionally, anyone who is known to be mentally deficient is not of suitable age and discretion.

Service in matrimonial action cannot use SAD service without a court order.

Whenever process is personally delivered, either to a defendant to to a SAD person, CPLR 306(b) requires a description of that person, including age, gender, color of skin, hair color, approximate weight, height and age, and other identifying features.

As a condition preceding to using nail and mail service, the plaintiffs process server must first use "due diligence" in an attempt to in-hand personal delivery to the defendant, as well as SAD delivery to the defendants home or place of business. Because of the reduced likelihood that the defendant will actually receive the summons when it s nailed and mailed, the "due diligence" requirement is strictly construed. It refers to the quality of the effects made to personally deliver, or SAD deliver the process, and CPLR 306(d) require the process server to describe the efforts made to ascertain the whereabouts of the defendants dwelling and place of business.

SAD service and nail & mail service are collectively referred to s "substitute service." When using either method, the mailing must be sent within 20 days from the SAD delivery or the nailing to the door. It is sent by regular mail to the defendants last known residents, or to its actual place of business. If it is mailed to the place of business, the envelope cannot indicate that it is from an attorney, and it must be marked personal and confidential.

After utilizing substitute service, proof of such service 'should' be filed with a clerk of the court within 20 days, and service is 'complete' 10 days thereafter. A defendant's 30 day time period to appear in the action runs from when service is 'complete.' This a defendant has 40 days in which to appear, and the 40 days does not being to run until the plaintiff files the affidavit of service.

Whenever considering substituted service, apply the 10, 20, 30, and 40 day rule:

1. the 10 days is used to measure from the filing of proof of service to determine with service is complete;

2. 20 days to nail and mail, or to SAD deliver and mail;

3. 20 days to file proof of service;

4. 30 days for a defendant to appear after service is "complete";

5. 40 days for a defendant to appear measured from when the affidavit of service was filed

Under CPLR 3211(e), if there is a defect in CID'S Mail service of process, then the defendant must promptly bring it to the courts attention, otherwise the defective service defense is waived. That is, if the defendant makes a CPLR 3211(a) motion to dismiss, and does not include defective service, or any element of MOP, then those objections are waived, or where the defendant does not make a pre-answer motion to dismiss, then she can assert it as an affirmative defense in her answer, but she must then made a CPLR 3212 motion for summary judgment within 30 days, alleging defective service of process, otherwise that ground is waived and the defendant consents to jurisdiction.

Whenever a defendant made a motion of defective service of process under either CPLR 3211 or 3212, the plaintiff should always make a cross-motion, asking the court to extend the plaintiffs 120 day time period to serve by alleging "good cause shown" or "in the interest of justice" under CPLR 306-b.

A plaintiff can serve a defendant by ordinary mail, but to be effective, the defendant must cooperate, by signing a written acknowledgment consent to such service, and mailing back to the plaintiff within 30 days. Service is "complete" when the acknowledgment form is mailed back and the defendant then has 20 days to appear to avoid a default judgment.

If the consent is not returned within 30 days, then the plaintiffs must use some other type of CID'S Mail service, but the expense can be imposed on the defendant as disbursement.

The Mail method of service cannot be used on a defendant who is an infant, or a judicially declared incompetent.

If the other CID'S Mail methods of service prove "impracticable" then the plaintiff can ask the court to prescribe some method of service, reasonably calculated under the circumstances to apprise the defendant of the pending lawsuit. Frequently the court will proscribe notice by publication under CPLR 316.

The SCOTUS has held that court order service does not have the guarantee that the defendant will receive actual notice of the lawsuit. It is constitutionally sufficient if the proscribed method is reasonably calculated under the circumstances to apprise the defendant of the lawsuit.

Service by publication is not "reasonably calculated" to inform a defendant if the defendants address is reasonably known or reasonably ascertainable.

There are two types of subpoenas:

1. a subpoena duces tecum, for the production of documents or records; or

2. a subpoena for testimony, either at a pretrial deposition or at a trial.

Subpoenas are served in the same method as a summons (CID'S Mail) but if substituted service is used, service is "complete" when the process is mailed and the affidavit of service does not have to be filed within 20 days.

Subpoenas can only be served on persons "found in the state." There is no long-arm service of a subpoena. However, where an out-of-state resident is a party in a NY litigation, then a trial subpoena can be served on that parties attorney, because the court has jurisdiction over a party who has appeared in pending litigation.

County courts, city courts outside of NYC, district courts (Nassau County and Western Suffolk County), and the 2,300 justice (village) courts

Counterclaims in the lower courts are unlimited in their monetary amount, except for justice (village) courts, where the limit of the counterclaim is $3,000

Where the landlord is seeking to recover unpaid rent, the monetary jurisdiction of the lower courts (including the justice courts) is unlimited

The $25,000, $15,000 and $3,000 limitation on monetary amounts in the lower court do not include interest on the money judgment or cost imposed on the losing party by the court.

Governed by the Uniform Justice Courts Act

The monetary limitation in the court is $3,000, including counterclaims.

Plaintiffs or defendant must reside or be employed or regularly conduct business within the village.

The summons can only be served inside the county where the court sits.

**There is no long-arm jurisdiction in this court.

No justice courts in NYC

Two district courts in NY State: cover Nassau County and Western Suffolk County.

Misdemeanor jurisdiction and civil money claims and replevin claims, up to $15,000.

**The monetary jurisdiction is $15,000

In district courts, and the city courts outside of NYC, where the plaintiffs money claim is $6,000 or less, or in NYC civil court where the plaintiffs claim is $10,000 or less, the claim will be send for mandatory nonbinding arbitration, where the arbitrators award is subject to a de novo review by a trial court.

There are 61 City Courts outside NYC, governed by the City Court Act (CCA).

Monetary limitation of $15,000, but no limitation on counterclaims or landlord/tenant claims seeking past due rent.

There is long-arm jurisdiction (under CCA 404) for process served outside of the city.

Must be a resident of the city or (except in Nassau or Westchester Counties) can also be a resident of an adjoining county.

There are no City Court in NYC

Appeals are taken to the county court, except in the 2nd Department, where appeals are taken to the appellate term of the Supreme Court.

Governed by the NYC Civil Court Act

There is a monetary limitation of $25,000.

Appeals from these courts are taken to the appellate term of the Supreme Court

Service of process must be made within NYC, except it can be made outside of the city:

1. on a long-arm defendant (CPLR 404);

2. to implead an additional defendant into the lawsuit (CPLR 408)

3. counterclaims or crossclaims;

4. to being in a necessary party into the lawsuit (CPLR 1001 and CPLR 3211(a)(10)); or

5. a defendant who is a NY State domicile, who is a resident of NYC

CPLR 3001 - ordinarily the NY Supreme Court has exclusive SMJ over declaratory judgment actions, however the NYC Civil Courts have SMJ for declaratory judgement actions that do not exceed $25,000 for:

1. to confirm an arbitration award of an attorney/client fee dispute; or

2. indemnification claims against liability insurance companies

In the District Court, NYC Civil Court, and the City Courts outside of NYC, service of process is generally limited to the county where the court is sitting (CPLR 403). However, there can be long-arm jurisdiction.

Lower Courts have long-arm jurisdiction to serve the defendant outside the courts jurisdiction if the claim involves:

1. the defendant trans-acting business within the city or the district;

2. the defendant's tortous conduct within the courts jurisdiction; or

3. the plaintiffs claims of the defendants ownership or use of real property within the jurisdiction.

Do NOT give jurisdiction where the defendants tortous conduct occurred outside the state, causing injury within the courts jurisdiction.