This is a short video on how to complete Personal Service of Court Papers.
When you file a petition with the Court you may receive instructions from the Court stating that it is your responsibility to have the other person served.
What does this mean to you?
It means that in order to start the court proceeding, the other person or persons must be served with the court papers. They must receive a copy of the summons and petition and/or Order to Show Cause and other documentation that you submitted with your filing.
How do they receive a copy of the summons and petition?
The easiest way is for you to hire a City Marshall, a private process server, or the civil department of the local Sheriff’s Department. You may find these offices listed in your local telephone book or on the internet. Of course, these offices will charge you a fee to have one of their employees serve the papers for you. However, many people find that this is the best way to have the other person served correctly. It may be worth the small fee they charge for this service since they know how to properly serve litigants with court process.
On the other hand, you may want to learn how to properly serve the other side without using the Marshall or paid process server. The most common way is to have a friend or relative(who is at least 18 years old) personally deliver the papers to the other party. You cannot use the post office to serve the other side. Another way is to have an adult over the age of 18 personally deliver the papers to the person whom you want to appear in court.
One of the questions people often ask is whether the person you want to appear in court must actually accept the papers in their hand for service to be complete? The answer is no. When your friend or relative provides the papers by personally delivering them, they need to only make the papers available. This means if they won’t accept the papers in their hand, you can set them on the table next to them, or even drop the papers at their feet. Your friend or relative merely needs to indicate they are delivering the papers to the other person, and that the papers are for them. Please note Service may not occur on Sundays or Legal Holidays.
A second question is whether you can be present when your friend or relative serves the other side. The answer is yes. However, you cannot be the one who does the service. Your friend or relative must personally provide the papers to the other side . If this is an emotionally charged case you may wish not to escalate the situation by being present.
Once the papers have been provided to the other side by personal delivery, your friend or relative must complete an affidavit of service. An affidavit of service is simply a piece of paper that describes what was served on the other party, as well as where and when and to whom those papers were served. The affidavit contains a section called the description, and in that section your friend or relative will describe the height, weight and other descriptive features of the person they served. After they complete the affidavit of service it must be signed by the person serving the process and notarized by a notary public.
What does it mean to be notarized? Notarized is just a fancy way of verifying that the person who signed the affidavit is actually the same person who is present in front of the notary public. The notary public will check the persons photo identification, and then have your friend or relative sign the affidavit in front of them. Notary public are available for free at all Courthouses in New York State. You can also go to a bank, or to any other notary public for them to notarize your friend or relatives signature but there may be a fee for this service.
Once the affidavit of service is completed, and notarized, it is your job to get the original, signed and notarized , affidavit to the court. The Judge, Support Magistrate or Referee will need to see the affidavit in case the other party fails to show on the scheduled date. The affidavit is proof as to where and when the other party was served.
There are other methods of service available when the other person tries to avoid being served, such as when they are home but will not answer the door, or when they otherwise fail to cooperate in the receipt of legal papers.
The most common ways of obtaining service when the other party fails to cooperate are :
First, by suitable age and discretion
Second, by due diligence.
What does suitable age mean?
By suitable age and discretion it would mean giving the papers to someone at the persons house where the person you want to appear in court lives, or the place where that person goes to work. The words suitable age and discretion usually mean having someone served at one of those locations who is over the age of 14, and is likely to give the papers to the person intended to be served. So, if you know that person over the age of 14 is just a temporary visitor or is not likely to provide the papers to the intended party, then they would not be a person of suitable age and discretion. Another example might be giving the papers to someone at that location who has a mental challenge. That person might not be someone of suitable age and discretion because they may not know enough to give the papers to the intended recipient.
After someone of suitable age and discretion is served, your friend or relative must also mail a copy of the papers in an envelope that says” personal and confidential” on the outside. It cannot say in the return address or otherwise that it comes from an attorney, or involves a legal action against the person to be served . This mailing must take place within 20 days of the service of the papers upon the person of suitable age and discretion.
Your friend or relative needs to complete an affidavit of service saying when they served a copy of the court papers to a person of suitable age and discretion, and when they mailed a copy of all the papers to be served by first-class mail. Again, the affidavit of service has to be notarized and provided to the court.
What does due diligence mean?
An alternate way of service is called Due Diligence and is done when the other party fails to cooperate Due diligence is when your friend or relative tries to serve the papers three or four times at the persons home or business. Those three or four attempts need to be on different days at different times of day. For example, one day they might try service in the morning, and the next day they might try service in the evening. Another time it may be on the weekend(remember process cannot be served on Sundays).
After making three or four attempts your friend or relative must mail the summons and petition or Order to Show Cause and petition to the person to be served by first-class mail in an envelope that says “personal and confidential.” It cannot say in the return address or otherwise that it comes from an attorney, or involves a legal action against the person to be served. This mailing must take place within 20 days of service. Your friend or relative needs to complete an affidavit of service saying when they made diligent attempts, and also saying when they mailed another copy of the summons and petition or Order to Show Cause and petition by first-class mail. Again, the affidavit of service has to be notarized and provided to the court.
There are other methods of service which are available when the other party tries to evade or avoid being served besides suitable age and due diligence service. However, they are more complicated and would typically required you to consult with an attorney as well as to make a special court application.
If you have any questions about this video, please ask the clerk at the counter for additional information. The court staff can only provide you with procedural advice and may not provide legal advice. You may wish to consult with an attorney as to any legal questions or legal advice which you seek.