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NEW YORK CONSOLIDATED LAWS
NEW YORK CIVIL PRACTICE LAWS AND RULES
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- Rule 305.
Summons; supplemental summons, amendment.
(a) Summons; supplemental summons. A summons shall
specify the basis of the venue designated and if based upon the residence of the plaintiff
it shall specify the plaintiff`s address, and also shall bear the index number assigned
and the date of filing with the clerk of the court. A third-party summons shall also
specify the date of filing of the third-party summons with the clerk of the court. The
summons in an action arising out of a consumer credit transaction shall prominently
display at the top of the summons the words "consumer credit transaction" and,
where a purchaser, borrower or debtor is a defendant, shall specify the county of
residence of a defendant, if one resides within the state, and the county where the
consumer credit transaction took place, if it is within the state. Where, upon order of
the court or by stipulation of all parties or as of right pursuant to section 1003, a new
party is joined in the action and the joinder is not made upon the new party's motion, a
supplemental summons specifying the pleading which the new party must answer shall be
filed with the clerk of the court and served upon such party.
(b) Summons and notice. If the complaint is not served
with the summons, the summons shall contain or have attached thereto a notice stating the
nature of the action and the relief sought, and, except in an action for medical
malpractice, the sum of money for which judgment may be taken in case of default.
(c) Amendment. At any time, in its discretion and upon
such terms as it deems just, the court may allow any summons or proof of service of a
summons to be amended, if a substantial right of a party against whom the summons issued
is not prejudiced.
Rule 306. Proof of service.
- (a) Generally. Proof of service shall 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.
- (b) Personal service. Whenever service is made pursuant
to this article by delivery of the summons to an individual, proof of service shall also
include, in addition to any other requirement, a description of the person to whom it was
so delivered, including, but not limited to, sex, color of skin, hair color, approximate
age, approximate weight and height, and other identifying features.
- (c) Other service. Where service is made pursuant to
subdivision four of section three hundred eight of this chapter, proof of service shall
also specify the dates, addresses and the times of attempted service pursuant to
subdivisions one, two or three of such section.
- (d) Form. Proof of service shall be in the form of a
certificate if the service is made by a sheriff or other authorized public officer, in the
form of an affidavit if made by any other person, or in the form of a signed
acknowledgement of receipt of a summons and complaint, or summons and notice or notice of
petition as provided for in section 312-a of this article.
- (e) Admission of service. A writing admitting service by
the person to be served is adequate proof of service.
Rule 306-a. Index number in an action commenced in supreme or
county court.
(a) Upon filing the summons and complaint or summons with notice in an action
commenced in supreme or county court, an index number shall be assigned and the fee
required by subdivision (a) of section eight thousand eighteen of this chapter shall be
paid. Upon the filing of a summons and complaint against a person not already a party, as
permitted under section one thousand seven or rule one thousand eleven of this chapter,
the fee required by subdivision (a) of section eight thousand eighteen of this chapter
shall be paid, but a separate index number shall not be assigned.
(b) If a person other than the plaintiff or third-party plaintiff who served the
summons or third-party summons obtains the index number and pays the fee therefor, the
clerk shall issue an order directing the plaintiff or the third-party plaintiff to pay
such person the amount of the fee paid. If such fee is not paid within thirty days of
service of the order with notice of entry, the person who paid the fee, in addition to any
other remedies available at law, may apply to the clerk for an order dismissing the action
without prejudice.
Rule 306-b. Service of the summons and complaint, summons
with notice, or of the third-party summons and complaint. Service of the summons and
complaint, summons with notice, or of the third-party summons and complaint shall be made
within one hundred twenty days after their filing, provided that in an action or
proceeding where the applicable statute of limitations is four months or less, service
shall be made not later than fifteen days after the date on which the applicable statute
of limitations expires. If service is not made upon a defendant within the time provided
in this section, the court, upon motion, shall dismiss the action without prejudice as to
that defendant, or upon good cause shown or in the interest of justice, extend the time
for service.
Rule 307. Personal service upon the state.
1. Personal service upon the state shall be made by delivering the summons to an
assistant attorney-general at an office of the attorney-general or to the attorney-general
within the state.
2. Personal service on a state officer sued solely in an official capacity or
state agency, which shall be required to obtain personal jurisdiction over such an officer
or agency, shall be made by (1) delivering the summons to such officer or to the chief
executive officer of such agency or to a person designated by such chief executive officer
to receive service, or (2) by mailing the summons by certified mail, return receipt
requested, to such officer or to the chief executive officer of such agency, and by
personal service upon the state in the manner provided by subdivision one of this section.
Service by certified mail shall not be complete until the summons is received in a
principal office of the agency and until personal service upon the state in the manner
provided by subdivision one of this section is completed. For purposes of this
subdivision, the term "principal office of the agency" shall mean the location
at which the office of the chief executive officer of the agency is generally located.
Service by certified mail shall not be effective unless the front of the envelope bears
the legend "URGENT LEGAL MAIL" in capital letters. The chief executive officer
of every such agency shall designate at least one person, in addition to himself or
herself, to accept personal service on behalf of the agency. For purposes of this
subdivision the term state agency shall be deemed to refer to any agency, board, bureau,
commission, division, tribunal or other entity which constitutes the state for purposes of
service under subdivision one of this section.
Rule 308. Personal service upon a natural person. Personal
service upon a natural person shall be made by any of the following methods:
1. by delivering the summons within the state to the person to be served; or
2. by delivering the summons within the state to a person of suitable age and
discretion at the actual place of business, dwelling place or usual place of abode of the
person to be served and by either mailing the summons to the person to be served at his or
her last known residence or by mailing the summons by first class mail to the person to be
served at his or her actual place of business in an envelope bearing the legend
"personal and confidential" and not indicating on the outside thereof, by return
address or otherwise, that the communication is from an attorney or concerns an action
against the person to be served, such delivery and mailing to be effected within twenty
days of each other; proof of such service shall be filed with the clerk of the court
designated in the summons within twenty days of either such delivery or mailing, whichever
is effected later; service shall be complete ten days after such filing; proof of service
shall identify such person of suitable age and discretion and state the date, time and
place of service, except in matrimonial actions where service hereunder may be made
pursuant to an order made in accordance with the provisions of subdivision a of section
two hundred thirty-two of the domestic relations law; or
3. by delivering the summons within the state to the agent for service of the
person to be served as designated under rule 318, except in matrimonial actions where
service hereunder may be made pursuant to an order made in accordance with the provisions
of subdivision a of section two hundred thirty-two of the domestic relations law;
4. where service under paragraphs one and two cannot be made with due diligence,
by affixing the summons to the door of either the actual place of business, dwelling place
or usual place of abode within the state of the person to be served and by either mailing
the summons to such person at his or her last known residence or by mailing the summons by
first class mail to the person to be served at his or her actual place of business in an
envelope bearing the legend "personal and confidential" and not indicating on
the outside thereof, by return address or otherwise, that the communication is from an
attorney or concerns an action against the person to be served, such affixing and mailing
to be effected within twenty days of each other; proof of such service shall be filed with
the clerk of the court designated in the summons within twenty days of either such
affixing or mailing, whichever is effected later; service shall be complete ten days after
such filing, except in matrimonial actions where service hereunder may be made pursuant to
an order made in accordance with the provisions of subdivision a of section two hundred
thirty-two of the domestic relations law;
5. in such manner as the court, upon motion without notice, directs, if service
is impracticable under paragraphs one, two and four of this section.
6. For purposes of this section, "actual place of business" shall
include any location that the defendant, through regular solicitation or advertisement,
has held out as its place of business.
Rule 309. Personal service upon an infant, incompetent or
conservatee.
(a) Upon an infant. Personal service upon an infant
shall be made by personally serving the summons within the state upon a parent or any
guardian or any person having legal custody or, if the infant is married, upon an adult
spouse with whom the infant resides, or, if none are within the state, upon any other
person with whom he resides, or by whom he is employed. If the infant is of the age of
fourteen years or over, the summons shall also be personally served upon him within the
state.
(b) Upon a person judicially declared to be incompetent. Personal
service upon a person judicially declared to be incompetent to manage his affairs and for
whom a committee has been appointed shall be made by personally serving the summons within
the state upon the committee and upon the incompetent, but the court may dispense with
service upon the incompetent.
(c) Upon a conservatee. Personal service on a person for
whom a conservator has been appointed shall be made by personally serving the summons
within the state upon the conservator and upon the conservatee, but the court may dispense
with service upon the conservatee.
Rule 310. Personal service upon a partnership.
(a) Personal service upon persons conducting a business as a partnership may be
made by personally serving the summons upon any one of them.
(b) Personal service upon said partnership may also be made within the state by
delivering the summons to the managing or general agent of the partnership or the person
in charge of the office of the partnership within the state at such office and by either
mailing the summons to the partner thereof intended to be served by first class mail to
his last known residence or to the place of business of the partnership. Proof of such
service shall be filed within twenty days with the clerk of the court designated in the
summons; service shall be complete ten days after such filing; proof of service shall
identify the person to whom the summons was so delivered and state the date, time of day
and place of service.
(c) Where service under subdivisions (a) and (b) of this section cannot be made
with due diligence, it may be made by affixing a copy of the summons to the door of the
actual place of business of the partnership within the state and by either mailing the
summons by first class mail to the partner intended to be so served to such person to his
last known residence or to said person at the office of said partnership within the state.
Proof of such service shall be filed within twenty days thereafter with the clerk of the
court designated in the summons; service shall be complete ten days after filing.
(d) Personal service on such partnership may also be made by delivering the
summons to any other agent or employee of the partnership authorized by appointment to
receive service; or to any other person designated by the partnership to receive process
in writing, filed in the office of the clerk of the county wherein such partnership is
located.
(e) If service is impracticable under subdivisions (a), (b) and (c) of this
section, it may be made in such manner as the court, upon motion without notice directs.
Rule 310-a. Personal service upon a limited partnership.
(a) Personal service upon any domestic or foreign limited partnership shall be
made by delivering a copy personally to any managing or general agent or general partner
of the limited partnership in this state, to any other agent or employee of the limited
partnership authorized by appointment to receive service or to any other person designated
by the limited partnership to receive process, in the manner provided by law for service
of summons, as if such person was the defendant. Personal service upon a limited
partnership subject to the provisions of article eight-A of the partnership law may also
be made pursuant to section 121-109 of such law.
(b) If service is impracticable under subdivision (a) of this section, it may be
made in such manner as the court, upon motion without notice, directs.
(c) A limited liability partnership may also be served pursuant to section
121-1505 of the partnership law.
Rule 311. Personal service upon a corporation or governmental
subdivision.
(a) Personal service upon a corporation or governmental subdivision shall be
made by delivering the summons as follows:
- 1. upon any domestic or foreign corporation, to an officer, director, managing
or general agent, or cashier or assistant cashier or to any other agent authorized by
appointment or by law to receive service. A business corporation may also be served
pursuant to section three hundred six or three hundred seven of the business corporation
law. A not-for-profit corporation may also be served pursuant to section three hundred six
or three hundred seven of the not-for-profit corporation law;
- 2. upon the city of New York, to the corporation counsel or to any person
designated to receive process in a writing filed in the office of the clerk of New York
county;
- 3. upon any other city, to the mayor, comptroller, treasurer, counsel or clerk;
or, if the city lacks such officers, to an officer performing a corresponding function
under another name;
- 4. upon a county, to the chair or clerk of the board of supervisors, clerk,
attorney or treasurer;
- 5. upon a town, to the supervisor or the clerk;
- 6. upon a village, to the mayor, clerk, or any trustee;
- 7. upon a school district, to a school officer, as defined in the education law;
and
- 8. upon a park, sewage or other district, to the clerk, any trustee or any
member of the board.
(b) If service upon a domestic or foreign corporation within the one hundred
twenty days allowed by section three hundred six-b of this article is impracticable under
paragraph one of subdivision (a) of this section or any other law, service upon the
corporation may be made in such manner, and proof of service may take such form, as the
court, upon motion without notice, directs.
Rule 311-a. Personal service on limited liability companies.
(a) Service of process on any domestic or foreign limited liability company
shall be made by delivering a copy personally to (i) any member of the limited liability
company in this state, if the management of the limited liability company is vested in its
members, (ii) any manager of the limited liability company in this state, if the
management of the limited liability company is vested in one or more managers, (iii) to
any other agent authorized by appointment to receive process, or (iv) to any other person
designated by the limited liability company to receive process, in the manner provided by
law for service of a summons as if such person was a defendant. Service of process upon a
limited liability company may also be made pursuant to article three of the limited
liability company law.
(b) If service is impracticable under subdivision (a) of this section, it may be
made in such manner as the court, upon motion without notice, directs.
Rule 312-a. Personal service by mail.
(a) Service. As an alternative to the methods of
personal service authorized by section 307, 308, 310, 311 or 312 of this article, a
summons and complaint, or summons and notice, or notice of petition and petition may be
served by the plaintiff or any other person by mailing to the person or entity to be
served, by first class mail, postage prepaid, a copy of the summons and complaint, or
summons and notice or notice of petition and petition, together with two copies of a
statement of service by mail and acknowledgement of receipt in the form set forth in
subdivision (d) of this section, with a return envelope, postage prepaid, addressed to the
sender.
(b) Completion of service and time to answer.
- 1. The defendant, an authorized employee of the defendant, defendant's attorney
or an employee of the attorney must complete the acknowledgement of receipt and mail or
deliver one copy of it within thirty (30) days from the date of receipt. Service is
complete on the date the signed acknowledgement of receipt is mailed or delivered to the
sender. The signed acknowledgement of receipt shall constitute proof of service.
- 2. Where a complaint or petition is served with the summons or notice of
petition, the defendant shall serve an answer within twenty (20) days after the date the
signed acknowledgement of receipt is mailed or delivered to the sender.
(c) Affirmation. The acknowledgement of receipt of
service shall be subscribed and affirmed as true under penalties of perjury and shall have
the same force and effect as an affidavit.
(d) Form. The statement of service by mail and the
acknowledgement of receipt of such service shall be in substantially the following form:
Statement of Service by Mail and
Acknowledgement of Receipt by Mail of
Summons and Complaint or Summons and Notice
or Notice of Petition and Petition
A. STATEMENT OF SERVICE
BY MAIL
To: (Insert the name and address of the person or entity to be served.)
The enclosed summons and complaint, or summons and notice, or notice of petition and
petition (strike out inapplicable terms) are served pursuant to section 312-a of the Civil
Practice Law and Rules.
To avoid being charged with the expense of service upon you, you must sign, date and
complete the acknowledgement part of this form and mail or deliver one copy of the
completed form to the sender within thirty (30) days from the date you receive it. You
should keep a copy for your records or your attorney. If you wish to consult an attorney,
you should do so as soon as possible before the thirty (30) days expire.
If you do not complete and return the form to the sender within thirty (30) days, you (or
the party on whose behalf you are being served) will be required to pay expenses incurred
in serving the summons and complaint, or summons and notice, or notice of petition and
petition in any other manner permitted by law, and the cost of such service as permitted
by law will be entered as a judgment against you.
If you have received a complaint or petition with this statement, the return of this
statement and acknowledgement does not relieve you of the necessity to answer the
complaint or petition. The time to answer expires twenty (20) days after the day you mail
or deliver this form to the sender. If you wish to consult with an attorney, you should do
so as soon as possible before the twenty (20) days expire.
If you are served on behalf of a corporation, unincorporated association, partnership or
other entity, you must indicate under your signature your relationship to the entity. If
you are served on behalf of another person and you are authorized to receive process, you
must indicate under your signature your authority.
It is a crime to forge a signature or to make a false entry on this statement or on the
acknowledgement.
B. ACKNOWLEDGEMENT OF RECEIPT OF SUMMONS AND COMPLAINT OR SUMMONS AND NOTICE
OR NOTICE OF PETITION AND PETITION
I received a summons and complaint, or summons and notice, or notice of petition and
petition (strike out inapplicable terms) in the above- captioned matter at (insert
address).
PLEASE CHECK ONE OF THE FOLLOWING; IF 2 IS CHECKED, COMPLETE AS INDICATED:
1. / / I am not in military service.
2. / / I am in military service, and my rank, serial number and branch of service are as
follows:
Rank:________________________________
Serial number:_________________________
Branch of Service:______________________
TO BE COMPLETED REGARDLESS OF MILITARY STATUS:
Date:_________________________________________
(Date this Acknowledgement is executed)
I affirm the above as true under penalty of perjury.
__________________________________
Signature
__________________________________
Print name
__________________________________
Name of Defendant for which acting
__________________________________
Position with Defendant for which acting (i.e., officer, attorney, etc.)
PLEASE COMPLETE ALL BLANKS INCLUDING DATES
BY MAIL
(e) Subsequent service. Where a duly executed
acknowledgement is not returned, upon the subsequent service of process in another manner
permitted by law, the summons or notice of petition or paper served with the summons or
notice of petition shall indicate that an attempt previously was made to effect service
pursuant to this section.
(f) Disbursements. Where the signed acknowledgement of
receipt is not returned within thirty (30) days after receipt of the documents mailed
pursuant to subdivision (a) of this section, the reasonable expense of serving process by
an alternative method shall be taxed by the court on notice pursuant to section 8402 of
this chapter as a disbursement to the party serving process, and the court shall direct
immediate judgment in that amount.
Rule 313. Service without the state giving personal
jurisdiction. A person domiciled in the state or subject to the jurisdiction of the courts
of the state under section 301 or 302, or his executor or administrator, may be served
with the summons without the state, in the same manner as service is made within the
state, by any person authorized to make service within the state who is a resident of the
state or by any person authorized to make service by the laws of the state, territory,
possession or country in which service is made or by any duly qualified attorney,
solicitor, barrister, or equivalent in such jurisdiction.
Rule 314. Service without the state not giving personal
jurisdiction in certain actions. Service may be made without the state by any person
authorized by section 313 in the same manner as service is made within the state:
1. in a matrimonial action; or
2. where a judgment is demanded that the person to be served be excluded from a
vested or contingent interest in or lien upon specific real or personal property within
the state; or that such an interest or lien in favor of either party be enforced,
regulated, defined or limited; or otherwise affecting the title to such property,
including an action of interpleader or defensive interpleader; or
3. where a levy upon property of the person to be served has been made within
the state pursuant to an order of attachment or a chattel of such person has been seized
in an action to recover a chattel.
Rule 315. Service by publication authorized. The court, upon
motion without notice, shall order service of a summons by publication in an action
described in section 314 if service cannot be made by another prescribed method with due
diligence.
Rule 316. Service by publication.
(a) Contents of order; form of publication; filing. An
order for service of a summons by publication shall direct that the summons be published
together with the notice to the defendant, a brief statement of the nature of the action
and the relief sought, and, except in an action for medical malpractice, the sum of money
for which judgment may be taken in case of default and, if the action is brought to
recover a judgment affecting the title to, or the possession, use or enjoyment of, real
property, a brief description of the property, in two newspapers, at least one in the
English language, designated in the order as most likely to give notice to the person to
be served, for a specified time, at least once in each of four successive weeks, except
that in the matrimonial action publication in one newspaper in the English language,
designated in the order as most likely to give notice to the person to be served, at least
once in each of three successive weeks shall be sufficient. The summons, complaint, or
summons and notice in an action for divorce or separation, order and papers on which the
order was based shall be filed on or before the first day of publication.
(b) Mailing to accompany publication in matrimonial actions. An
order for service of a summons by publication in a matrimonial action shall also direct
that on or before the first day of publication a copy of the summons be mailed to the
person to be served unless a place where such person probably would receive mail cannot
with due diligence be ascertained and the court dispenses with such mailing. A notice of
publication shall be enclosed.
(c) Time of publication; when service complete. The
first publication of the summons shall be made within thirty days after the order is
granted. Service by publication is complete on the twenty-eighth day after the day of
first publication, except that in a matrimonial action it is complete on the twenty-first
day after the day of first publication.
Rule 317. Defense by person to whom summons not personally
delivered. A person served with a summons other than by personal delivery to him or to his
agent for service designated under rule 318, within or without the state, who does not
appear may be allowed to defend the action within one year after he obtains knowledge of
entry of the judgment, but in no event more than five years after such entry, upon a
finding of the court that he did not personally receive notice of the summons in time to
defend and has a meritorious defense. If the defense is successful, the court may direct
and enforce restitution in the same manner and subject to the same conditions as where a
judgment is reversed or modified on appeal. This section does not apply to an action for
divorce, annulment or partition.
Rule 318. Designation of agent for service. A person may be
designated by a natural person, corporation or partnership as an agent for service in a
writing, executed and acknowledged in the same manner as a deed, with the consent of the
agent endorsed thereon. The writing shall be filed in the office of the clerk of the
county in which the principal to be served resides or has its principal office. The
designation shall remain in effect for three years from such filing unless it has been
revoked by the filing of a revocation, or by the death, judicial declaration of
incompetency or legal termination of the agent or principal.
2103 N.Y.C.P.L.R. Service of papers.
(a) Who can serve. Except where otherwise prescribed by
law or order of court, papers may be served by any person not a party of the age of
eighteen years or over.
(b) Upon an attorney. Except where otherwise prescribed
by law or order of court, papers to be served upon a party in a pending action shall be
served upon the party's attorney. Where the same attorney appears for two or more parties,
only one copy need be served upon the attorney. Such service upon an attorney shall be
made:
- 1. by delivering the paper to the attorney personally; or
- 2. by mailing the paper to the attorney at the address designated by that
attorney for that purpose or, if none is designated, at the attorney's last known address;
service by mail shall be complete upon mailing; where a period of time prescribed by law
is measured from the service of a paper and service is by mail, five days shall be added
to the prescribed period; or
- 3. if the attorney's office is open, by leaving the paper with a person in
charge, or if no person is in charge, by leaving it in a conspicuous place; or if the
attorney's office is not open, by depositing the paper, enclosed in a sealed wrapper
directed to the attorney, in the attorney's office letter drop or box; or
- 4. by leaving it at the attorney's residence within the state with a person of
suitable age and discretion. Service upon an attorney shall not be made at the attorney's
residence unless service at the attorney's office cannot be made; or
- 5. by transmitting the paper to the attorney by electronic means, provided that
a telephone number or other station or other limitation, if any, is designated by the
attorney for that purpose. Service by electronic means shall be complete upon the receipt
by the sender of a signal from the equipment of the attorney served indicating that the
transmission was received, and the mailing of a copy of the paper to that attorney. The
designation of a telephone number or other station for service by electronic means in the
address block subscribed on a paper served or filed in the course of an action or
proceeding shall constitute consent to service by electronic means in accordance with this
subdivision. An attorney may change or rescind a number or address designated for service
of documents by serving a notice on the other parties; or
- 6. by dispatching the paper to the attorney by overnight delivery service at the
address designated by the attorney for that purpose or, if none is designated, at the
attorney's last known address. Service by overnight delivery service shall be complete
upon deposit of the paper enclosed in a properly addressed wrapper into the custody of the
overnight delivery service for overnight delivery, prior to the latest time designated by
the overnight delivery service for overnight delivery. Where a e information transmitted in a tangible medium of
expression.
Article 23. Subpoenas, Oaths and Affirmations
2301 N.Y.C.P.L.R. Scope of subpoena. A subpoena requires the
attendance of a person to give testimony. A subpoena duces tecum requires production of
books, papers and other things. A child support subpoena is a subpoena issued pursuant to
section one hundred eleven-p of the social services law by the department of social
services or a social services district, or its authorized representative, or another
state's child support enforcement agency governed by title IV-D of the social security
act.
2302 N.Y.C.P.L.R. Authority to issue.
(a) Without court order. Subpoenas may be issued without
a court order by the clerk of the court, a judge where there is no clerk, the attorney
general, an attorney of record for a party to an action, an administrative proceeding or
an arbitration, an arbitrator, a referee, or any member of a board, commission or
committee authorized by law to hear, try or determine a matter or to do any other act, in
an official capacity, in relation to which proof may be taken or the attendance of a
person as a witness may be required; provided, however, that a subpoena to compel
production of a patient's clinical record maintained pursuant to the provisions of section
33.13 of the mental hygiene law shall be accompanied by a court order. A child support
subpoena may be issued by the department, or the child support enforcement unit
coordinator or support collection unit supervisor of a social services district, or his or
her designee, or another state's child support enforcement agency governed by title IV-D
of the social security act.
(b) Issuance by court. A subpoena to compel production
of an original record or document where a certified transcript or copy is admissible in
evidence, or to compel attendance of any person confined in a penitentiary or jail, shall
be issued by the court. Unless the court orders otherwise, a motion for such subpoena
shall be made on at least one day's notice to the person having custody of the record,
document or person confined. A subpoena to produce a prisoner so confined shall be issued
by a judge to whom a petition for habeas corpus could be made under subdivision (b) of
section 7002 of the civil practice law and rules or a judge of the court of claims, if the
matter is pending before the court of claims or a judge of the surrogate's court if the
matter is pending before the surrogates court, or a judge of the family court, if the
matter is pending before the family court.
2303 N.Y.C.P.L.R. Service of subpoena; payment of fees in advance.
(a) A subpoena requiring attendance or a subpoena duces tecum shall be served in
the same manner as a summons, except that where service of such a subpoena is made
pursuant to subdivision two or four of section three hundred eight of this chapter, the
filing of proof of service shall not be required and service shall be deemed complete upon
the later of the delivering or mailing of the subpoena, if made pursuant to subdivision
two of section three hundred eight of this chapter, or upon the later of the affixing or
mailing of the subpoena, if made pursuant to subdivision four of section three hundred
eight of this chapter. Any person subpoenaed shall be paid or tendered in advance
authorized traveling expenses and one day's witness fee.
(b) A child support subpoena issued pursuant to section one hundred eleven-p of
the social services law to public utility companies and corporations, including but not
limited to cable television, gas, electric, steam, and telephone >Any
person may comply with a subpoena duces tecum by having the requisite books, documents or
things produced by a person able to identify them and testify respecting their origin,
purpose and custody.
(c) Inspection, examination and audit of records. Whenever
by statute any department or agency of government, or officer thereof, is authorized to
issue a subpoena requiring the production of books, records, documents or papers, the
issuing party shall have the right to the possession of such material for a period of
time, and on terms and conditions, as may reasonably be required for the inspection,
examination or audit of the material. The reasonableness of such possession, time, terms,
and conditions shall be determined with consideration for, among other things, (i) the
good cause shown by the issuing party, (ii) the rights and needs of the person subpoenaed,
and (iii) the feasibility and appropriateness of making copies of the material. The cost
of reproduction and transportation incident thereto shall be borne by the person or party
issuing the subpoena unless the court determines otherwise in the interest of justice.
2306 N.Y.C.P.L.R. Hospital records; medical records of department or
bureau of a municipal corporation or of the state.
(a) Transcript or reproduction. Where a subpoena duces
tecum is served upon a hospital, or upon a department or bureau of a municipal corporation
or of the state, or an officer thereof, requiring the production of records relating to
the condition or treatment of a patient, a transcript or a full-sized legible
reproduction, certified as correct by the superintendent or head of the hospital,
department or bureau or his assistant, or the officer, may be produced unless otherwise
ordered by a court. Such a subpoena shall be served at least three days before the time
fixed for the production of the records unless otherwise ordered by a court.
(b) Delivery to clerk. Where a court has designated a
clerk to receive records described in subdivision (a), delivery may be made to him at or
before the time fixed for their production. The clerk shall give a receipt for the records
and notify the person subpoenaed when they are no longer required. The records shall be
delivered in a sealed envelope indicating the title of the action, the date fixed for
production and the name and address of the attorney appearing on the subpoena. They shall
be available for inspection pursuant to the rules or order of the court.
2307 N.Y.C.P.L.R. Books, papers and other things of a library, department or
bureau of a municipal corporation or of the state. Issuance by court. A
subpoena duces tecum to be served upon a library, or a department or bureau of a municipal
corporation or of the state, or an officer thereof, requiring the production of any books,
papers or other things, shall be issued by a justice of the supreme court in the district
in which the book, paper or other thing is located or by a judge of the court in which an
action for which it is required is triable. Unless the court orders otherwise, a motion
for such subpoena shall be made on at least one day's notice to the library, department,
bureau or officer having custody of the book, document or other thing and the adverse
party. Such subpoena must be served upon such library, or such department or bureau of
such municipal corporation or of the state or an officer having custody of the book,
document or other thing and the adverse party at least twenty-four hours before the time
fixed for the production of such records unless in the case of an emergency the court
shall by order dispense with such notice otherwise required. Compliance with a subpoena
duces tecum may be made by producing a full-sized legible reproduction of the item or
items required to be produced certified as complete and accurate by the person in charge
of such library, department or bureau, or a designee of such person, and no personal
appearance to certify such item or items shall be required of such person or designee,
unless the court shall order otherwise pursuant to subdivision (d) of rule 2214 of this
chapter. Where a stipulation would serve the same purpose as production of the book,
document or other thing and the subpoena is required because the parties will not
stipulate, the judge may impose terms on any party, including the cost of production of
the book or document, and require such cost to be paid as an additional fee to the
library, department or officer.
2308 N.Y.C.P.L.R. Disobedience of subpoena.
(a) Judicial. Failure to comply with a subpoena issued
by a judge, clerk or officer of the court shall be punishable as a contempt of court. If
the witness is a party the court may also strike his pleadings. A subpoenaed person shall
also be liable to the person on whose behalf the subpoena was issued for a penalty not
exceeding fifty dollars and damages sustained by reason of the failure to comply. A court
may issue a warrant directing a sheriff to bring the witness into court. If a person so
subpoenaed attends or is brought into court, but refuses without reasonable cause to be
examined, or to answer a legal and pertinent question, or to produce a book, paper or
other thing which he was directed to produce by the subpoena, or to subscribe his
deposition after it has been correctly reduced to writing, the court may forthwith issue a
warrant directed to the sheriff of the county where the person is, committing him to jail,
there to remain until he submits to do the act which he was so required to do or is
discharged according to law. Such a warrant of commitment shall specify particularly the
cause of the commitment and, if the witness is committed for refusing to answer a
question, the question shall be inserted in the warrant.
(b) Non-judicial.
- (1) Unless otherwise provided, if a person fails to comply with a subpoena which
is not returnable in a court, the issuer or the person on whose behalf the subpoena was
issued may move in the supreme court to compel compliance. If the court finds that the
subpoena was authorized, it shall order compliance and may impose costs not exceeding
fifty dollars. A subpoenaed person shall also be liable to the person on whose behalf the
subpoena was issued for a penalty not exceeding fifty dollars and damages sustained by
reason of the failure to comply. A court may issue a warrant directing a sheriff to bring
the witness before the person or body requiring his appearance. If a person so subpoenaed
attends or is brought before such person or body, but refuses without reasonable cause to
be examined, or to answer a legal and pertinent question, or to produce a book, paper or
other thing which he was directed to produce by the subpoena, or to subscribe his
deposition after it has been correctly reduced to writing, the court, upon proof by
affidavit, may issue a warrant directed to the sheriff of the county where the person is,
committing him to jail, there to remain until he submits to do the act which he was so
required to do or is discharged according to law. Such a warrant of commitment shall
specify particularly the cause of the commitment and, if the witness is committed for
refusing to answer a question, the question shall be inserted in the warrant.
- (2) Notwithstanding the provisions of paragraph one of this subdivision, if a
person fails to comply with a subpoena issued pursuant to section one hundred eleven-p of
the social services law by the department of social services or a social services
district, or its authorized representative, or another state's child support enforcement
agency governed by title IV-D of the social security act, such department or district is
authorized to impose a penalty against the subpoenaed person. The amount of the penalty
shall be determined by the commissioner of the department of social services and set forth
in regulation, and shall not exceed fifty dollars. Payment of the penalty shall not be
required, however, if in response to notification of the imposition of the penalty the
subpoenaed person complies immediately with the subpoena.
(c) Review of proceedings. Within ninety days after the
offender shall have been committed to jail he shall, if not then discharged by law, be
brought, by the sheriff, or other officer, as a matter of course personally before the
court issuing the warrant of commitment and a review of the proceedings shall then be held
to determine whether the offender shall be discharged from commitment. At periodic
intervals of not more than ninety days following such review, the offender, if not then
discharged by law from such commitment, shall be brought, by the sheriff, or other
officer, personally before the court issuing the warrant of commitment and further reviews
of the proceedings shall then be held to determine whether he shall be is charged from
commitment. The clerk of the court before which such review of the proceedings shall be
held, or the judge or justice of such court in case there be no clerk, shall give
reasonable notice in writing of the date, time and place of each such review to each party
or his attorney who shall have appeared of record in the proceeding resulting in the
issuance of the warrant of commitment, at their last known address.
11 Gen. Bus. Serving civil process on Sunday. All service or
execution of legal process, of any kind whatever, on the first day of the week is
prohibited, except in criminal proceedings or where service or execution is specially
authorized by statute. Service or execution of any process upon said day except as herein
permitted is absolutely void for any and every purpose whatsoever.
13 Gen. Bus. Maliciously serving process on Saturday on person who keeps
Saturday as holy time. Whoever maliciously procures any process in a civil
action to be served on Saturday, upon any person who keeps Saturday as holy time, and does
not labor on that day, or serves upon him any process returnable on that day, or
maliciously procures any civil action to which such person is a party to be adjourned to
that day for trial, is guilty of a misdemeanor.
89-t Gen. Bus. Definitions. For this article, a process server
is a person other than an attorney or a party to an action acting on his own behalf who:
(a) derives income from the service of papers in an action; or (b) has effected service of
process in five or more actions or proceedings in the twelve month period immediately
preceding the service in question. A person who serves interlocutory papers upon an
attorney or who serves papers on behalf of a federal, state or local governmental agency
in the course of his employment by such agency shall not be deemed a process server within
the meaning of this article by virtue of such service.
89-u Gen. Bus. Process server records, penalties.
1. Each process server shall maintain a legible record of all service made by
him as prescribed in this section.
2. The record to be maintained shall include the following information, where
applicable:
- a. the title of the action;
- b. the name of the person served, if known;
- c. the date and approximate time service was effected;
- d. the address where service was effected;
- e. the nature of the papers served;
- f. the court in which the action has been commenced;
- g. the index number of the action, if known.
3. If service is effected pursuant to subdivisions one, two, or three of section
three hundred eight of the civil practice law and rules, the record shall also include the
description of the person served, including, but not limited to, sex, color of skin, hair
color, approximate age, height and weight and other identifying features.
4. If service is effected pursuant to subdivision four of section three hundred
eight of the civil practice law and rules, the record shall also include the dates,
addresses and time of attempted service pursuant to subdivisions one, two or three of such
section.
5. If the process server files an affidavit of service with the court, his
record shall include the date of such filing.
6. Process servers shall retain each record required to be kept under this
article for a period of two years from the date of service. Where a process server is
employed as a process server by any person, a copy of such records shall also be
maintained by such person at his principal office in this state for the same period.
89-v Gen. Bus. Enforcement by attorney general. In addition to
the other remedies provided, whenever there shall be a violation of this article,
application may be made by the attorney general in the name of the people of the state of
New York to a court or justice having jurisdiction by a special proceeding to issue an
injunction, and upon notice to the defendant of not less than five days, to enjoin and
restrain the continuance of such violations; and if it shall appear to the satisfaction of
the court or justice that the defendant has, in fact, violated this article, an injunction
may be issued by such court or justice, enjoining and restraining any further violation,
without requiring proof that any person has, in fact, been injured or damaged thereby. In
any such proceeding, the court may make allowances to the attorney general as provided in
paragraph six of subdivision (a) of section eighty-three hundred three of the civil
practice law and rules. Whenever the court shall determine that a violation of this
article has occurred, the court may impose a civil penalty of not more than one thousand
dollars for each violation. Provided, however, a process server or agency may not be held
liable for penalty in any action brought under this section for violation of this article,
if the process server or agency shows by a preponderance of the evidence that the
violation was not intentional and resulted from a bona fide error, notwithstanding the
maintenance of procedures reasonably adopted to avoid any such error. Examples of a bona
fide error include, but are not limited to, clerical calculation, computer malfunction and
programming and printing errors. In connection with any such proposed application, the
attorney general is authorized to take proof and make a determination of the relevant
facts and to issue subpoenas in accordance with the civil practice law and rules.
89-bb Gen. Bus. Definitions. For the purposes of this article:
1. A "process server" is a person, other than an attorney or a party
to an action acting on his own behalf, who: (a) derives income from the service of papers
in an action; or (b) has effected service of process in five or more actions or
proceedings in the twelve month period immediately preceding the service in question. A
person who serves interlocutory papers upon an attorney or who serves papers on behalf of
a federal, state or local governmental agency in the course of his employment by such
agency shall not be deemed a process server within the meaning of this article by virtue
of such service.
2. A "process serving agency" is any person, firm, partnership,
association or corporation, other than an attorney or a law firm located in this state,
who, as owner, manager or contractor, maintains an office, bureau or agency for the
purpose of assigning or distributing process to individual process servers for actual
service.
89-cc Gen. Bus. Process server records.
1. Each process server shall maintain a legible record of all service made by
him as prescribed in this section. Such records shall be kept in chronological order in a
bound, paginated volume. Corrections in records shall be made only by drawing a straight
line through the inaccurate entry and clearly printing the accurate information directly
above the inaccurate entry. All other methods of correction, including but not limited to
erasing, opaquing, obliterating or redacting, are prohibited.
2. The record to be maintained shall include the following information, where
applicable:
- (a) the title of the action or a reasonable abbreviation thereof;
- (b) the name of the person served, if known;
- (c) the date and approximate time service was effected;
- (d) the address where service was effected;
- (e) the nature of the papers served;
- (f) the court in which the action has been commenced;
- (g) the index number of the action, if known;
- (h) if service is effectuated pursuant to subdivision four of section three
hundred eight of the civil practice law and rules or subdivision one of section seven
hundred thirty-five of the real property actions and proceedings law, a description of the
color of the door to which the summons is affixed;
- (i) the process serving agency from whom the process served was received, if
any;
- (j) type of service effected whether personal, substituted or conspicuous;
- (k) if service is effected pursuant to subdivision one, two or three of section
three hundred eight of the civil practice law and rules, the record shall also include the
description of the person served, including, but not limited to sex, color of skin, hair
color, approximate age, height and weight and other identifying features;
- (l) if service is effected pursuant to subdivision four of section three hundred
eight of the civil practice law and rules, the record shall also include the dates,
addresses and time of attempted service pursuant to subdivision one, two or three of such
section;
- (m) if the process server files an affidavit of service with the court, his
record shall include the date of such filing.
89-dd Gen. Bus. Process serving agency records.
1. Each process serving agency shall be required to keep complete and accurate
records with respect to each process server to whom it distributes, assigns or delivers
process to be served. Corrections in records shall be made only by drawing a straight line
through the inaccurate entry and clearly printing the accurate information directly above
the inaccurate entry. All other methods of correction, including but not limited to,
erasing, opaquing, obliterating, or redacting, are prohibited.
2. Such records shall include, where applicable:
- (a) The name of the process server to whom process is distributed, assigned or
delivered to be served;
- (b) The titles or a reasonable abbreviation thereof and index numbers of each
case if filed in court by the agency;
- (c) The date that such papers were assigned for service, and the date that
service was effected;
- (d) The person from whom such papers were received for service;
- (e) The date of filing of papers with the court if filed by the agency;
- (f) The type of service effected whether personal, substituted or conspicuous.
89-ee Gen. Bus. Responsibility of process serving agency and process
servers.
1. It shall be unlawful for a process server to fail to comply with all legal
requirements for the service of process.
2. A process serving agency shall be legally responsible for the acts of each
process server to whom it has distributed, assigned or delivered process for service if it
could reasonably have known that the process server was acting improperly.
3. It shall be unlawful for a process serving agency or a process server to fail
to comply with all laws and regulations respecting preparation, notarization and filing of
affidavits of service of process and other documents.
89-ff Gen. Bus. Affidavits of service. It shall be unlawful for
a process server to fail to set forth on any affidavit of service or process signed by him
his license or registration number if such process server is required to be licensed or
registered pursuant to any state or local law and the name and address of any process
serving agency from whom he obtained the process for service if any.
89-gg Gen. Bus. Availability of records. All records required
to be maintained by this article shall be retained by a process server or process serving
agency for a minimum of three years and shall be available for inspection by the attorney
general. The attorney general shall afford a process server or process serving agency at
least five days prior written notice of its desire to make an inspection of records and
shall specify the records to be inspected.
89-hh Gen. Bus. Enforcement by attorney general. In addition to
the other remedies provided, whenever there shall be a violation of this article,
application may be made by the attorney general in the name of the people of the state of
New York to a court or justice having jurisdiction by a special proceeding to issue an
injunction, and upon notice to the defendant of not less than five days, to enjoin and
restrain the continuance of such violations; and if it shall appear to the satisfaction of
the court or justice that the defendant has, in fact, violated this article, an injunction
may be issued by such court or justice, enjoining and restraining any further violation,
without requiring proof that any person has, in fact, been injured or damaged thereby. In
any such proceeding, the court may make allowances to the attorney general as provided in
paragraph six of subdivision (a) of section eighty-three hundred three of the civil
practice law and rules. Whenever the court shall determine that a violation of this
article has occurred, the court may impose a civil penalty of not more than one thousand
dollars for each violation. Provided, however, a process server or agency may not be held
liable for penalty in any action brought under this section for violation of this article,
if the process server or agency shows by a preponderance of the evidence that the
violation was not intentional and resulted from a bona fide error, notwithstanding the
maintenance of procedures reasonably adopted to avoid any such error. Examples of a bona
fide error include, but are not limited to, clerical calculation, computer malfunction and
programming and printing errors. In connection with any such proposed application, the
attorney general is authorized to take proof and make a determination of the relevant
facts and to issue subpoenas in accordance with the civil practice law and rules.
89-ii Gen. Bus. Preservation of private remedies. Nothing in
this article shall be construed to nullify or impair any right or rights which an
individual may have against a process server or process serving agency at common law, by
statute or otherwise.
89-jj Gen. Bus. Preemption. This article does not annul, alter,
affect or exempt any person or business entity subject to the provisions of this article
from complying with any local law, ordinance or regulation with respect to process servers
or process serving agencies except to the extent that those laws are inconsistent with any
provision of this article, and then only to the extent of the inconsistency. For purposes
of this section, a local law, ordinance or regulation is not inconsistent with this
article if the protection such law or regulation affords a consumer is greater than the
protection provided by this article.
89-kk Gen. Bus. Severability. If any provision of this article
or if any application thereof to any person or circumstance is held invalid, the remainder
of this article and the application of the provision to other persons and circumstances
shall not be affected thereby.
89-ll Gen. Bus. Applicability. This article shall apply only in
cities having a population of one million or more.
Administrative Code of New York City
20-403 License required. It shall be unlawful for any person to
be employed as or perform the services of process server without a license therefor.
20-404 Definition.
a. A process server is a person engaged in the business of serving or one who
purports to serve or one who serves personally or by substituted service upon any person,
corporation, governmental or political subdivision or agency, a summons, subpoena, notice,
citation or other process, directing an appearance or response to a legal action, legal
proceeding or administrative proceedings.
b. For the purposes of this subchapter the service of five or more process in
any one year shall be deemed to constitute doing business as a process server.
20-405 Exceptions.
a. The provisions of this subchapter shall not apply to any employee of any
city, state or federal department or agency, who is acting within the scope of his or her
employment.
b. The provisions of this subchapter shall not apply to attorneys duly admitted
to practice law in the state of New York.
20-406 Application; fingerprinting.
a. An application for such a license or renewal thereof shall be made to the
commissioner on a form prescribed by him or her.
b. The commissioner shall require that applicants for licenses issued pursuant
to this subchapter be fingerprinted for the purpose of securing criminal history records
from the state division of criminal justice services. The applicant shall pay a processing
fee as required by the state division of criminal justice services. Fingerprints shall be
taken of the individual owner if the applicant is a sole proprietorship; the general
partners if the applicant is a partnership; and the officers, principals, directors, and
stockholders owning more than ten percent of the outstanding stock of the corporation if
the applicant is a corporation. Any person required to be fingerprinted hereunder shall
furnish to the department three current passport-sized photographs of such person.
Notwithstanding the foregoing, the commissioner need not require applicants for licenses
required under this subchapter to be fingerprinted if criminal history records concerning
such applicants are not available from the state division of criminal justice services.
20-407 Fee; term. The biennial license fee to be paid by such
persons shall be three hundred forty dollars.
20-408 Rules and regulations. The commissioner may make and
promulgate such rules and regulations as he or she may deem necessary for the proper
implementation and enforcement of this subchapter.
20-409 Issuance, renewal, suspension and revocation of a license.
a. A license issued hereunder may be suspended or revoked or its renewal denied
by the commissioner at any time for the failure of the licensee to comply with any rule,
regulation or order promulgated by the commissioner.
b. In addition to any of the powers that may be exercised by the commissioner
pursuant to this subchapter and chapter one of this title, the commissioner, after notice
and an opportunity to be heard, may refuse to issue or renew, or may suspend or revoke, a
license required under this subchapter if the applicant or licensee, or any of its
principals, officers or directors, or any of its stockholders owning more than ten percent
of the outstanding stock of the corporation has been convicted of a crime which, in the
judgment of the commissioner, has a direct relationship to such person's fitness or
ability to perform any of the activities for which a license is required under this
subchapter or has been convicted of any other crime which, in accordance with article
twenty-three-a of the correction law, would provide a justification for the commissioner
to refuse to issue or renew, or to suspend or revoke, such license.
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