New York Civil Practice Law & RulesNY CPLR
NYCPLR Article 3 Jurisdiction and Service, Appearance and Choice of Court
301. Jurisdiction over persons, property or status.
302. Personal jurisdiction by acts of non-domiciliaries.
(a) Acts which are the basis of jurisdiction.
(b) Personal jurisdiction over non-resident defendant
in matrimonial actions or family court
proceedings.
(c) Effect of appearance.
303. Designation of attorney as agent for service.
304. Method of commencing action or special proceeding.
305. Summons; supplemental summons, amendment.
(a) Summons; supplemental summons.
(b) Summons and notice.
(c) Amendment.
306. Proof of service.
(a) Generally.
(b) Personal service.
(c) Other service.
(d) Form.
(e) Admission of service.
306-a. Index number in an action commenced in supreme or county
court.
306-b. Service of the summons and complaint, summons with
notice, third-party summons and complaint, or petition
with a notice of petition or order to show cause.
307. Personal service upon the state.
308. Personal service upon a natural person.
309. Personal service upon an infant, incompetent or
conservatee.
(a) Upon an infant.
(b) Upon a person judicially declared to be
incompetent.
(c) Upon a conservatee.
310. Personal service upon a partnership.
310-a. Personal service upon a limited partnership.
311. Personal service upon a corporation or governmental
subdivision.
311-a. Personal service on limited liability companies.
312. Personal service upon a court, board or commission.
312-a. Personal service by mail.
(a) Service.
(b) Completion of service and time to answer.
(c) Affirmations.
(d) Form.
(e) Subsequent service.
(f) Disbursements.
313. Service without the state giving personal jurisdiction.
314. Service without the state not giving personal
jurisdiction in certain actions.
315. Service by publication authorized.
316. Service by publication.
(a) Contents of order; form of publication; filing.
(b) Mailing to accompany publication in matrimonial
actions.
(c) Time of publication; when service complete.
317. Defense by person to whom summons not personally
delivered.
318. Designation of agent for service.
320. Defendant`s appearance.
(a) Requirement of appearance.
(b) When appearance confers personal jurisdiction,
generally.
(c) When appearance confers personal jurisdiction, in
certain actions; limited appearance.
(d) Appearance after first publication.
321. Attorneys.
(a) Appearance in person or by attorney.
(b) Change or withdrawal of attorney.
(c) Death, removal or disability of attorney.
322. Authority for appearance of attorney in real property
action.
(a) Authority of plaintiff`s attorney.
(b) Authority of non-resident defendant`s attorney.
(c) Agencies or wholly-owned corporations of the United
States.
325. Grounds for removal.
(a) By supreme court for mistake in choice of court.
(b) From court of limited jurisdiction.
(c) On consent to court of limited jurisdiction.
(d) Without consent to court of limited jurisdiction.
(e) From supreme court to surrogate`s court where
decedent`s estate affected.
(f) To supreme court where county judge incapacitated.
(g) From one local court to another.
326. Procedure on removal.
(a) Stay of proceedings.
(b) Order and subsequent proceedings.
(c) Fees and disbursements.
327. Inconvenient forum.
328. Assistance to tribunals and litigants outside the state.
(a) Pursuant to court order.
(b) Without court order.
(c) Effect.
S 301. Jurisdiction over persons, property or status. A court may
exercise such jurisdiction over persons, property, or status as might
have been exercised heretofore.
S 302. Personal jurisdiction by acts of non-domiciliaries. (a) Acts
which are the basis of jurisdiction. As to a cause of action arising
from any of the acts enumerated in this section, a court may exercise
personal jurisdiction over any non-domiciliary, or his executor or
administrator, who in person or through an agent:
1. transacts any business within the state or contracts anywhere to
supply goods or services in the state; or
2. commits a tortious act within the state, except as to a cause of
action for defamation of character arising from the act; or
3. commits a tortious act without the state causing injury to person
or property within the state, except as to a cause of action for
defamation of character arising from the act, if he
(i) regularly does or solicits business, or engages in any other
persistent course of conduct, or derives substantial revenue from goods
used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences
in the state and derives substantial revenue from interstate or
international commerce; or
4. owns, uses or possesses any real property situated within the
state.
(b) Personal jurisdiction over non-resident defendant in matrimonial
actions or family court proceedings. A court in any matrimonial action
or family court proceeding involving a demand for support, alimony,
maintenance, distributive awards or special relief in matrimonial
actions may exercise personal jurisdiction over the respondent or
defendant notwithstanding the fact that he or she no longer is a
resident or domiciliary of this state, or over his or her executor or
administrator, if the party seeking support is a resident of or
domiciled in this state at the time such demand is made, provided that
this state was the matrimonial domicile of the parties before their
separation, or the defendant abandoned the plaintiff in this state, or
the claim for support, alimony, maintenance, distributive awards or
special relief in matrimonial actions accrued under the laws of this
state or under an agreement executed in this state. The family court may
exercise personal jurisdiction over a non-resident respondent to the
extent provided in sections one hundred fifty-four and one thousand
thirty-six of the family court act.
(c) Effect of appearance. Where personal jurisdiction is based solely
upon this section, an appearance does not confer such jurisdiction with
respect to causes of action not arising from an act enumerated in this
section.
S 303. Designation of attorney as agent for service. The commencement
of an action in the state by a person not subject to personal
jurisdiction is a designation by him of his attorney appearing in the
action or of the clerk of the court if no attorney appears, as agent,
during the pendency of the action, for service of a summons pursuant to
section 308,in any separate action in which such a person is a defendant
and another party to the action is a plaintiff if such separate action
would have been permitted as a counterclaim had the action been brought
in the supreme court.
* S 304. Method of commencing action or special proceeding. An action
is commenced by filing a summons and complaint or summons with notice. A
special proceeding is commenced by filing a petition. Where a court
finds that circumstances prevent immediate filing, the signing of an
order requiring the subsequent filing at a specific time and date not
later than five days thereafter shall commence the action. For purposes
of this section, and for purposes of section two hundred three of this
chapter and section three hundred six-a of this article, filing shall
mean the delivery of the summons with notice, summons and complaint or
petition to the clerk of the court in the county in which the action or
special proceeding is brought or any other person designated by the
clerk of the court for that purpose together with any fee required as
specified in rule twenty-one hundred two of this chapter for filing.
Notwithstanding any other provision of law, such delivery may be
accomplished by facsimile transmission or electronic means, as defined
in subdivision (f) of rule twenty-one hundred three of this chapter,
where and in the manner authorized by the chief administrator of the
courts by rule. At the time of filing, the filed papers shall be date
stamped by the clerk of the court who shall file them and maintain a
record of the date of the filing and who shall return forthwith a date
stamped copy, together with an index number, to the filing party. Where
filing is by facsimile transmission, the clerk of the court need only
return a date stamped copy of the first page of the papers initiating
the lawsuit, together with the index number. Where filing is by
electronic means, the clerk shall, in accordance with rules promulgated
by the chief administrator, forthwith notify the filing party of the
index number and the date and time of filing. A confirmation record
produced by the filing party`s facsimile machine or computer and an
affidavit of filing by the filing party, shall be prima facie evidence
that the filing party transmitted documents consistent with the date,
time and place appearing on the confirmation record.
* NB Effective until July 1, 2003
* S 304. Method of commencing action or special proceeding. An action
is commenced by filing a summons and complaint or summons with notice. A
special proceeding is commenced by filing a notice of petition or order
to show cause and a petition. Where a court finds that circumstances
prevent immediate filing, the signing of an order requiring the
subsequent filing at a specific time and date not later than five days
thereafter shall commence the action. For purposes of this section, and
for purposes of sections two hundred three and three hundred six-a of
this chapter, filing shall mean the delivery of the summons with notice,
summons and complaint, notice of petition or order to show cause to the
clerk of the court in the county in which the action or special
proceeding is brought or any other person designated by the clerk of the
court for that purpose together with any fee required as specified in
rule twenty-one hundred two of this chapter for filing. At such time of
filing, the original and a copy of such papers shall be date stamped by
a court clerk who shall file the original and maintain a record of the
date of the filing and who shall immediately return the copy to the
party who brought the filing.
* NB Effective July 1, 2003
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.
S 306-a. Index number in an action commenced in supreme or county
court. (a) Upon filing the summons and complaint, summons with notice
or petition in an action or proceeding 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.
S 306-b. Service of the summons and complaint, summons with notice,
third-party summons and complaint, or petition with a notice of petition
or order to show cause. Service of the summons and complaint, summons
with notice, third-party summons and complaint, or petition with a
notice of petition or order to show cause shall be made within one
hundred twenty days after the filing of the summons and complaint,
summons with notice, third-party summons and complaint, or petition,
provided that in an action or proceeding, except a proceeding commenced
under the election law, 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.
S 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.
S 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.
S 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.
S 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.
S 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.
S 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.v
Top of Page
Article 3 Continued . . .
S 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.
S 312. Personal service upon a court, board or commission. Personal
service upon a court consisting of three or more judges may be made by
delivering the summons to any one of them. Personal service upon a board
or commission having a chairman or other presiding officer, secretary or
clerk, by whatever official title he is called, may be made by
delivering the summons to him. Personal service upon a board or
commission of a town or village may also be made by delivering the
summons to the clerk of the town or village. Personal service upon any
other board or commission shall be made by delivering the summons to any
one of the members.
S 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
(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.
S 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.
S 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.
S 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.
S 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.
Rule 320. Defendant`s appearance. (a) Requirement of appearance. The
defendant appears by serving an answer or a notice of appearance, or by
making a motion which has the effect of extending the time to answer. An
appearance shall be made within twenty days after service of the
summons, except that if the summons was served on the defendant by
delivering it to an official of the state authorized to receive service
in his behalf or if it was served pursuant to section 303, subdivision
two, three, four or five of section 308, or sections 313, 314 or 315,
the appearance shall be made within thirty days after service is
complete. If the complaint is not served with the summons, the time to
appear may be extended as provided in subdivision (b) of section 3012.
(b) When appearance confers personal jurisdiction, generally. Subject
to the provisions of subdivision (c), an appearance of the defendant is
equivalent to personal service of the summons upon him, unless an
objection to jurisdiction under paragraph eight of subdivision (a) of
rule 3211 is asserted by motion or in the answer as provided in rule
3211.
(c) When appearance confers personal jurisdiction, in certain actions;
limited appearance. When the court`s jurisdiction is not based upon
personal service on the defendant, an appearance is not equivalent to
personal service upon the defendant:
1. in a case specified in subdivision (3) of section 314, if
jurisdiction is based solely upon a levy on defendant`s property within
the state pursuant to an order of attachment; or
2. in any other case specified in section 314, if an objection to
jurisdiction under paragraphs eight or nine of subdivision (a) of rule
3211, or both, is asserted by motion or in the answer as provided in
rule 3211, unless the defendant proceeds with the defense after
asserting the objection to jurisdiction and the objection is not
ultimately sustained.
(d) Appearance after first publication. Where the defendant appears
during the period of publication of a summons against him, the service
by publication shall be deemed completed by the appearance.
S 321. Attorneys. (a) Appearance in person or by attorney. A party,
other than one specified in section 1201 of this chapter, may prosecute
or defend a civil action in person or by attorney, except that a
corporation or voluntary association shall appear by attorney, except as
otherwise provided in sections 1809 and 1809-A of the New York city
civil court act, sections 1809 and 1809-A of the uniform district court
act and sections 1809 and 1809-A of the uniform city court act, and
except as otherwise provided in section 501 and section 1809 of the
uniform justice court act. If a party appears by attorney such party may
not act in person in the action except by consent of the court.
(b) Change or withdrawal of attorney. 1. Unless the party is a person
specified in section 1201, an attorney of record may be changed by
filing with the clerk a consent to the change signed by the retiring
attorney and signed and acknowledged by the party. Notice of such change
of attorney shall be given to the attorneys for all parties in the
action or, if a party appears without an attorney, to the party.
2. An attorney of record may withdraw or be changed by order of the
court in which the action is pending, upon motion on such notice to the
client of the withdrawing attorney, to the attorneys of all other
parties in the action or, if a party appears without an attorney, to the
party, and to any other person, as the court may direct.
(c) Death, removal or disability of attorney. If an attorney dies,
becomes physically or mentally incapacitated, or is removed, suspended
or otherwise becomes disabled at any time before judgment, no further
proceeding shall be taken in the action against the party for whom he
appeared, without leave of the court, until thirty days after notice to
appoint another attorney has been served upon that party either
personally or in such manner as the court directs.
Rule 322. Authority for appearance of attorney in real property
action. (a) Authority of plaintiff`s attorney. Where the defendant in
an action affecting real property has not been served with evidence of
the authority of the plaintiff`s attorney to begin the action, he may
move at any time before answering for an order directing the production
of such evidence. Any writing by the plaintiff or his agent requesting
the attorney to begin the action or ratifying his conduct of the action
on behalf of the plaintiff is prima facie evidence of the attorney`s
authority.
(b) Authority of non-resident defendant`s attorney. The attorney for a
non-resident defendant in an action affecting real property shall file
with the clerk written authority for his appearance, executed and
acknowledged in the form required to entitle a deed to be recorded, and
shall serve either a copy of such authority or notice of such filing on
the plaintiff`s attorney within twenty days after appearing or making a
motion.
(c) Agencies or wholly-owned corporations of the United States. This
rule does not apply to an attorney representing an official, agency or
instrumentality of, or corporation wholly owned by, the United States.
S 325. Grounds for removal. (a) By supreme court for mistake in
choice of court. Where a mistake was made in the choice of the court in
which an action is commenced, the supreme court, upon motion, may remove
the action to the proper court, upon such terms as may be just.
(b) From court of limited jurisdiction. Where it appears that the
court in which an action is pending does not have jurisdiction to grant
the relief to which the parties are entitled, a court having such
jurisdiction may remove the action to itself upon motion. A waiver of
jury trial in the first court is inoperative after the removal.
(c) On consent to court of limited jurisdiction. Where it appears that
the amount of damages sustained are less than demanded, and a lower
court would have had jurisdiction of the action but for the amount of
damages demanded, the court in which an action is pending may remove it
to the lower court upon reduction of the amount of damages demanded to a
sum within the jurisdictional limits of the lower court and upon consent
of all parties to the action other than a defendant who has interposed
no counterclaim and over whom the lower court would have had
jurisdiction if the action had originally been commenced there. A waiver
of jury trial in the first court is inoperative after the removal.
(d) Without consent to court of limited jurisdiction. The appellate
division, if it determines that the calendar conditions in a lower court
so permit, may by rule provide that a court in which an action is
pending may, in its discretion, remove such action without consent to
such lower court where it appears that the amount of damages sustained
may be less than demanded, and the lower court would have had
jurisdiction but for the amount of damages demanded. If the action is so
removed, then the verdict or judgment shall be subject to the limitation
of monetary jurisdiction of the court in which the action was originally
commenced and shall be lawful to the extent of the amount demanded
within such limitation. A waiver of jury trial in the first court is
inoperative after the removal.
(e) From supreme court to surrogate`s court where decedent`s estate
affected. Where an action pending in the supreme court affects the
administration of a decedent`s estate which is within the jurisdiction
of the surrogate`s court, the supreme court, upon motion, may remove the
action to such surrogate`s court upon the prior order of the surrogate`s
court. The right of jury trial shall be preserved in the subsequent
proceedings.
(f) To supreme court where county judge incapacitated. Where a county
judge is incapable of acting in an action pending in the county court,
the supreme court may remove the action to itself. An objection to
jurisdiction that might have been taken in the county court may be taken
in the supreme court after the removal.
(g) From one local court to another. Where it is unlikely that an
action or proceeding pending in a district court, town court, village
court or city court will be disposed of within a reasonable period of
time because of (i) death, disability or other incapacity or
disqualification of all the judges of such court, or (ii) inability of
such court to form a jury in such action or proceeding, a judge of the
county court of the county in which such lower court is located, may,
upon motion of any party to such action or proceeding, order that it be
transferred for disposition by the lower court to any other district
court, town court, village court or city court in the same or an
adjoining county, provided that such other court has jurisdiction of the
subject matter of the action or proceeding and jurisdiction over the
classes of persons named as parties.
Rule 326. Procedure on removal. (a) Stay of proceedings. An order to
stay proceedings for the purpose of moving for removal may be made by
the court in which the action is pending or the court to which removal
is sought.
(b) Order and subsequent proceedings. Where an order of removal is
made by a court other than the court in which the action is pending, a
certified copy of the order shall be filed with the clerk of the court
in which the action is pending. Upon such filing or upon entry of an
order of removal by him, the clerk of the court in which an action is
pending shall forthwith deliver to the clerk of the court to which it
has been ordered removed all papers and records in the action and
certified copies of all minutes and entries which shall be filed,
entered or recorded, as the case requires, in the office of the latter
clerk. Subsequent proceedings shall be had in the court to which it has
been ordered removed as if the action had been originally commenced
there and no process, provisional remedy or other proceeding taken in
the court from which the action was removed shall be invalid as the
result of the removal.
(c) Fees and disbursements. If at the time the order of removal is
entered any filing, trial or jury demand fees have been paid, such fees
shall be credited against the fees which, for the same purpose, shall be
required in the court to which the action has been ordered removed. A
party entitled to tax disbursements after the removal may include fees
paid by him prior to the time the order of removal is entered.
Rule 327. Inconvenient forum. (a) When the court finds that in the
interest of substantial justice the action should be heard in another
forum, the court, on the motion of any party, may stay or dismiss the
action in whole or in part on any conditions that may be just. The
domicile or residence in this state of any party to the action shall not
preclude the court from staying or dismissing the action.
(b) Notwithstanding the provisions of subdivision (a) of this rule,
the court shall not stay or dismiss any action on the ground of
inconvenient forum, where the action arises out of or relates to a
contract, agreement or undertaking to which section 5-1402 of the
general obligations law applies, and the parties to the contract have
agreed that the law of this state shall govern their rights or duties in
whole or in part.
Rule 328. Assistance to tribunals and litigants outside the state.
(a) Pursuant to court order. Upon application by any interested person
or in response to letters rogatory issued by a tribunal outside the
state, the supreme court or a county court of the state may order
service upon any person who is domiciled or can be found within the
state of any document issued in connection with a proceeding in a
tribunal outside the state. The order shall direct the manner of
service.
(b) Without court order. Service in connection with a proceeding in a
tribunal outside the state may be made within the state without an order
of court.
(c) Effect. Service under this rule does not, of itself, require the
recognition or enforcement of an order, judgment or decree rendered
outside the state.
