How do I serve a Summons upon a defendant residing in a doorman apartment building?
When serving a defendant pursuant to a section of Civil Procedure Law and Rules that requires Service to be at ‘actual place of dwelling’, a process server must always attempt to serve the papers at the apartment where the defendant resides. However, if the Defendant resides in a doorman building and no visitors are allowed to go enter without invitation by a building resident, the Process server may under certain circumstances leave the papers with the doorman. However, in Order for such service to be considered effective, the courts will look to a) whether the process Server ascertained with the doorman that the Defendant actually resides in the building; b) whether process server made attempts to leave notes with the doorman for the Defendant to contact the server and c) whether the doorman communicated to the process server that the tenants have picked up the notes left by the server. Provided that the process server shows that he ascertained that the building is the Defendant’s ‘actual place of dwelling’ and made good faith efforts to contact the Defendant, the Court of Appeals has held that leaving papers with the doorman will be deemed same as leaving them with a ‘person of suitable age and discretion’. See DuPont et al v Chen, 41 N.Y.2d 794.
If the person I am serving is already represented by an attorney, do I still have to serve this individual in person or
can I serve the attorney?
Whenever a party is known to be represented by counsel, service upon attorney via regular mail is proper. Service is deemed to be complete on the date that the papers were placed in the mail. As long as there is an Affidavit of Mailing, indicating date and proper address of the party’s counsel, there is a presumption that if the package was mailed, it was received by the party served. Kihl v Pfeffer, 700 N.Y.S. 2d 87.
Caveat: You should be careful, however, to make sure that the attorney that you are serving is actually representing the party that you wish to serve for the purpose of the same proceeding to which the papers are related. In other words, if you are suing someone for personal injuries arising out of a car accident, and find out that this person is represented by counsel for purposes of a divorce, serving his divorce lawyer in an unrelated proceeding will not be proper for your personal injury suit. Thus, the attorney you serving, must be either ‘general counsel’ that represents the party you wish to serve for any and all purpose (e.g. corporate in-house counsel) or must have served a notice of appearance in the proceeding which you have commenced.
How can I serve a person that is home but refuses to open the door?
If you arrive at Defendant’s residence and buzz the doorbell or intercome and speak to the person residing in the apartment through the door or intercom but the person does not wish to open the door to receive the package, you may either slide the papers under the door or leave them on the doorstep provided that you advise the resident where you are leaving the papers. You may also slide the papers through a mail slot if one is available. See e.g. Spector v. Berman, 5000 N.Y.S.2d 1006. This type of process is often referred to as ‘intercom service’. Please remember whenever effecting ‘intercom service’, to mail an additional copy of the papers to the Defendant in order to properly complete service.
I recently moved and did not register a ‘forwarding’ address with the post office. The new tenants of the apartment where I used to live gave me some papers that were served in a collection matter. Can I be served properly at my old address??
First, we would like to note that we are not attorneys and although we may know the answer, we are not permitted to give legal advice. Whenever you are served with legal papers, it is best not to ignore them, no matter how they were served, but to take care of your legal issues before they get out of control. Having said that, whenever New York law permits verification of address through a state agency such as Department of Motor Vehicles for example in a case of a car accident, and you are served through the DMV to your old address, service will be deemed proper to the address on file with the DMV. There is a presumption that if you fail to re-register, you are ‘misrepresenting’ your permanent address and therefore cannot then claim protection of the defense of ‘bad service’. See e.g. Burke v. Zorba Diner, 623 N.Y.S.2d 932. Again, we do not know in your particular case whether service through DMV is permitted and as such, recommend that you obtain legal counsel.
With respect to Corporations and Limited Liability Companies, there is a similar rule with regard to failure to change address. A corporation or LLC is required to maintain a current address with the Department of State for purposes of service. If they failed to change the office address upon moving, or failed to update information concerning registered agent, service of papers upon the old address on file with the Department of State will be deemed proper.
FAQ - FREQUENTLY ASKED QUESTIONS ABOUT NY PROCESS SERVICE