CPLR 308: Personal Service on a Person
- Personal service on a person is completed when you personally serve the documents to a person involved in a legal case.
- The person you’re intending to serve doesn’t necessarily have to be a Defendant. They might be a witness, an heir to an estate, or somehow else involved in the legal action.
- Personal service does not necessarily mean you serve it directly to the person.
- There are 5 methods of personal service:
1) Personal Delivery
2) Suitable Age Person
3) Nail & Mail
4) Service Upon an Agent
5) By Court Order
- Service by any of the above methods is deemed “personal service”.
CPLR 308(1): Personal Delivery
- This is generally considered the best method of service.
- Personal delivery is completed when you deliver the documents to the person to be served.
- You can complete personal delivery on a person almost anywhere in the State of New York – at their home, work, business, walking down the street, in the grocery store, etc.
- Personal Delivery should not be confused with Personal Service. Personal Delivery is 1 of the 5 methods of Personal Service.
- Some types of cases must be served by personal delivery only, except with a court order for alternate service. See Serving Family Court Documents, Serving a Divorce Summons, and Serving a Surrogate's Court Citation.
CPLR 308(2): Suitable Age Service
- Suitable Age Service is a method of Personal Service where you serve the person by delivering a copy of the documents to another person of “suitable age and discretion” at their home or business.
- You should obtain the name and relationship of the person you have given the documents to.
- “Suitable age and discretion” are not defined in law. Process servers must use discretion in determining what is suitable age and discretion.
- Courts have previously held that if the person served had the capacity to understand that the documents were very important and needed to get to the person named on them, that the person was of suitable age and discretion. Courts have ruled that individuals as young as 10 years old were of suitable age and discretion. However, they’ve also ruled that older children lacked the capacity to understand the importance of the documents.
- It is important for the process server to use their own independent judgment to ensure that a person served is of both suitable age and discretion.
- While there is no official legislative or interpretative decision that dictates what constitutes suitable age and discretion. It is up to each process server, their agency, and their clients to determine what they consider an appropriate age.
CPLR 308(4): Affixing Documents
- This method of service is commonly known as "Nail & Mail".
- New York is the only state that allows Nail & Mail without a court order.
- This method allows the server to affix the documents to the door of the defendant’s home or business address.
- The documents must be taped (affixed) to the door. They cannot be put in a mailbox, stuffed in a door jamb, slipped under a door, etc.
- It requires that the process server use “due diligence” to complete service by Personal Delivery or Suitable Age Service.
- There is no legal definition of “due diligence”, however, it is generally accepted that an attempt in the early morning (6 AM – 8 AM), in the afternoon (Noon – 5 PM), and in the evening (7 PM – 10 PM) would constitute "due diligence". The attempts should be on separate days and one of the attempts should be on a Saturday. There should be at least 7-10 days between your first attempt and when you post.
- Individual attorneys or service agencies may have their own requirements as to due diligence. It is a best practice to always follow the instructions of the attorney or agency that sent the documents.
CPLR 308(5): Service Pursuant to Court Order
- This method of service is uncommon.
CPLR 308(5) states that the court may order any method of alternative service it deems appropriate if the process server cannot complete service by any other method.
This can be accomplished by publication in a newspaper, e-mail, social media, authorizing a Nail & Mail where not otherwise allowed, or any method that the court deems appropriate.
When completing alternate service by court order, the court will specify in their order how you should complete the service.
Required Mailing and Filing Deadlines
- If service is completed by Personal Delivery, there is no mailing required and no deadline to file the Affidavit of Service. The information contained in the following bullet points are irrelevant in that event.
- If service is completed by Suitable Age Service or Nail & Mail, you must send a copy of the summons to the person’s last known address or actual place of business. This is typically going to be the address you served them at.
- The envelope should have the words “Personal and Confidential” on the outside. There should be no indication that the envelope contains legal documents or is from an attorney, including in the return address. A best practice is to only put the return address with no name.
- The mailing must be completed within 20 days of the service.
- Your Affidavit of Service must be filed within 20 days of the service or mailing, whichever is done later.
- Service is not considered complete until 10 days after the Affidavit of Service is filed.
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