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Were you properly notified of the lawsuit?

Being properly "served" with a summons and complaint is a legal requirement of any lawsuit. "Service" means the delivery of a legal document (Summons) that notifies you of the lawsuit. The summons itself is the actual notice of the lawsuit. A short quiz appears at the bottom of this page.

Service must comply with New York law and constitutional standards:

  • Personal delivery of the summons to you; or
  • Personal delivery to a person of "suitable age and discretion" at your home or business plus follow-up mailing; or
  • Nailing the summons to your door with follow-up mailing only if it is proved that the prior two methods cannot be made with due diligence plus follow-up mailing.

Unfortunately, too many affidavits of service contain inaccuracies. Below are some answers to common questions about service. Additional notice requirements are now mandated under the Consumer Credit Fairness Act. For more information about it, see 5 Powerful Lawsuit Defenses for New York Debtors in 2022.

Frequently Asked Questions:

What is an affidavit of service?

Answer: The legal document prepared by a process server swearing to the truthfulness of the facts alleging proper delivery of the papers to you. Always remember, receiving the summons in the mail alone is not enough.

Must I be personally served, or sign for documents when served?

Answer: No. Personal service is not required to subject you to the court's authority. Nor must you sign for any court documents received. The court – and the public – rely on the process servers to properly serve and create truthful affidavits. This reliance is undermined constantly.

What is "nail and mail" service under New York CPLR § 308(4)?

Answer: According to New York's Civil Practice Law and Rules (CPLR) § 308(4), the "nail and mail" method of service is employed when personal service under CPLR § 308(1) and (2) cannot be achieved despite diligent efforts. The key components of "nail and mail" service include:

  1. Due Diligence Requirement: The plaintiff must demonstrate that they have exerted diligent efforts to personally serve the defendant but have been unsuccessful in doing so.

  2. Posting of Documents: The process server is required to physically affix a copy of the summons and complaint to the defendant's actual place of business or residence. It should be securely attached in a conspicuous location, such as the door of the premises.

  3. Mailing of Documents: Following the posting, the process server promptly mails a copy of the summons and complaint to the defendant's last known residential or business address.

It is crucial to note that the "nail and mail" method of service should only be utilized when personal service is unattainable despite diligent attempts by the plaintiff. Strict adherence to the due diligence requirement is essential to ensure compliance with the applicable legal provisions.

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What is "suitable age and discretion" service under CPLR § 308(2)?

Answer: Under CPLR § 308(2) in New York, "suitable age and discretion" service is a method of alternative service that can be used when personal service under CPLR § 308(1) is not feasible. It involves serving the summons and complaint to a person of suitable age and discretion who resides at the defendant's actual place of business or dwelling. Here are the key elements of "suitable age and discretion" service:

  1. Person of Suitable Age and Discretion: The server must deliver the documents to an individual who is deemed capable of understanding the importance of the legal papers and relaying the information to the defendant.

  2. Residing at Defendant's Actual Place: The person of suitable age and discretion should be a resident of the defendant's actual place of business or dwelling. This ensures that the documents are being served at a location where the defendant is likely to receive them.

  3. Informing the Person: The server must inform the person of suitable age and discretion about the contents of the documents being served. This ensures that they understand the nature of the legal papers they are accepting on behalf of the defendant.

It's important to note that "suitable age and discretion" service is considered a substitute for personal service and should be used only when personal service cannot be achieved with reasonable efforts. The server must exercise due diligence to ensure that the person accepting the documents meets the criteria of suitable age and discretion.

What is "sewer service"?

Answer: "Sewer service" is the practice whereby process servers deliberately fail to serve the summons and then falsify an affidavit of service, which is filed in court.

How big of a problem is sewer service?

Answer: Sewer service is worse today than ever before. In 1986, 48,000 default judgments due to sewer service were entered annually in New York City. Today, approximately 300,000 debt collection lawsuits are filed annually in New York City of which approximately 80% result in default. In our practice, very few of our clients are served personally.

Is "sewer service" legal?

Answer: No. In my opinion, it amounts to the crime of perjury. It also violates city, state, and federal consumer-rights laws.

How do I find out if I've been sued?

Answer: You can search E-Courts. Or you can call us. We will help you find out who sued you, when, and whether it resulted in a default judgment.

What is a default judgment?

Answer: A judgment (a legal declaration that you owe the money) entered against you for failing to appear in court. It's the definitive end of the lawsuit.

How do I know if a default judgment has been entered against me?

Answer: You can search E-Courts. Or call us for a quick and east way to find out. Otherwise, you can find out through the creditor or through the court. Other indications of a judgment are any notifications from a marshal or sheriff, income execution (wage garnishment), restraining notice (bank account seizure), or any letter citing the word "judgment."

Can I protect myself after a judgment has been entered against me?

Answer: Yes! Specific procedural laws exist to "vacate" (remove) the judgment, and permit you to defend yourself in the lawsuit. Bad service is a heavily used ground to overturn a judgment entered against you. Our law firm is dedicated to vacating default judgments, especially when you have not been properly served with the summons.

Does it matter if I actually owe the debt?

Answer: No! The legitimacy of your debt has nothing to do with your constitutional right to be properly served. Proper service should be your first area of inquiry because you will lose if you do not timely raise it. Do not let any creditor or collection lawyer minimize the importance of proper service.

Quiz: Understanding Service Procedure

What is the purpose of an affidavit of service?
A. To confirm the debt amount owed by the defendant.
B. To detail the defendant's assets for the court.
C. To swear to the truthfulness of the facts alleging proper delivery of legal papers.
D. To outline the defendant's criminal history.

What does "nail and mail" service entail?
A. Emailing the summons to the defendant.
B. Physically affixing the summons to the defendant's door and following up with an email.
C. Physically affixing the summons to the defendant's door and following up with mailing.
D. Leaving the summons with a neighbor to give to the defendant.

Under CPLR § 308(2), what is "suitable age and discretion" service?
A. Serving anyone who answers the door at the defendant's residence.
B. Serving a minor at the defendant's residence.
C. Serving the summons to a person capable of understanding its importance at the defendant's residence.
D. Serving the summons to any person outside of the defendant's workplace.

What is a default judgment?
A. A judgment entered for a case being dismissed.
B. A judgment entered against a defendant for failing to appear in court.
C. A preliminary judgment before the case goes to trial.
D. A judgment in favor of the defendant without a trial.

Correct Answers:

  1. C
  2. C
  3. C
  4. B

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