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New York Civil Practice: CPLR
Copyright 2016, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
2-308 New York Civil Practice: CPLR 308.syn
Personal Service upon a Natural Person
David L. Ferstendig
The chapter discusses personal service on the defendant under CPLR 308(1), setting out reasons why this is the most effective method of delivery. It discusses when personal service is valid even if process is not actually handed to the defendant and its invalidity if the defendant is fraudulently induced to come into the state, or service is made on Sunday or on any day of religious observance with malice and knowledge of the observance.
Further, the chapter discusses immunity of: (1) nonresident parties and witnesses with essential testimony who voluntarily attend judicial proceedings if their sole purpose for being in New York is to attend the proceedings, (2) foreign states, including a political subdivision of a foreign state, or an agency or instrumentality of a foreign state, unless provided otherwise by the Foreign Sovereign Immunities Act under 28 U.S.C.S. § 1604, and (3) representatives of foreign powers and their assistants. The chapter also notes the lack of immunity for parties present in New York involuntarily (such as a defendant present under compulsion of arrest).
Next, the chapter discusses additional methods of service including service on an agent under CPLR 308(3) and "substituted" service under CPLR 308(2) by delivery 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. It discusses the mailing to the defendant and filing requirement when substituted service is made, providing guidance in determining what constitutes adequate compliance with this method of service. The chapter also discusses "nailing and mailing" service under CPLR 308(4) when service cannot, with due diligence, be made under either CPLR 308(1) or (2).
Finally, the chapter discusses the right of a plaintiff under CPLR 308 to apply to the court, without notice, to authorize personal service in such manner as the court directs, if service is impracticable under other methods outlined in CPLR 308. It also analyzes the application of this provision to matrimonial actions.
The chapter includes a historical appendix discussing the amendments and legislative and judicial reports relating to CPLR 308, references to related New York State and federal rules, and law reviews discussing CPLR 308.
New York Civil Practice: CPLR (more commonly known as Weinstein, Korn & Miller) is the leading treatise on New York civil procedure and litigation, and is cited frequently by New York State and Federal courts as the authority on civil practice issues. It provides in-depth analysis and interpretation of New York's Civil Practice Law and Rules (CPLR), along with expert guidance and information on common and complex procedural issues facing New York civil law practitioners.
CPLR 308,Personal Service upon Natural Person,Personal Service,Natural Person,Personal Jurisdiction,Service on Sunday,Malicious Service on Saturday,Fraudulent Inducement to Enter Jurisdiction,Religious Observance,Malice,Immunity from Service,Nonresidents,Foreign State,Foreign Sovereign Immunities Act,Service on Agent,Delivery,Substituted Service,Nailing and Mailing,Matrimonial Action
RELATED CHAPTERS: (View)
For further discussion of personal service, see CPLR 309, Personal Service upon an Infant, Incompetent or Conservatee; CPLR 310, Personal Service upon a Partnership; CPLR 310-a, Personal Service upon a Limited Partnership; CPLR 311, Personal Service upon a Corporation or Governmental Subdivision; CPLR 311-a, Personal Service on Limited Liability Companies; CPLR 312, Personal Service upon a Court, Board or Commission; and CPLR 312-a, Personal Service by Mail.
OTHER RELATED PUBLICATIONS:
For forms of notices of motions, notices of cross-motions, affidavits, affirmations, orders, ex parte orders, and letters based on the provisions of CPLR 308, see Bender's Forms for Civil Practice: Civil Litigation, CPLR Article 3, Jurisdiction and Service, Appearance and Choice of Court (Matthew Bender).
For checklists, practice pointers, and practice insight relating to jurisdiction and service of process, see LexisNexis AnswerGuide New York Civil Litigation, Ch. 2, Jurisdiction and Service of Process (Matthew Bender).
For coverage of service of process in New York federal courts, see Federal Litigation Guide: New York and Connecticut, Ch. 6, Drafting the Summons and Complaint; and Ch. 8, Serving Process (Matthew Bender).