NYP 4

• Proper commencement of the action
• Proper service of process on ∆
• Proper basis of jurisdiction over the person or property involved in the action

• Filing process with clerk of the court
• Serving process on ∆ within 120 days of the filing

• Summons and complaint, or
• Summons and notice (brief statement of nature of action, relief sought, among of damages)

Any non-party who is at least 18 years old

• Any day of the week, except—
• Sunday, or
• Saturday, IF π knows that ∆ is a Saturday-Sabbath observer (no defect for innocent mistake)

Date that process is served directly upon ∆ (or date of ∆'s refusal, if ∆ is available but refuses to be served)

• 1: Personal delivery upon person of suitable age and discretion at ∆'s actual dwelling/place business, AND
• 2: Follow-up mailing to ∆'s actual place of business or last-known resident, AND
• 3: Filing of proof of service

• AFFIXING process to door of ∆'s actual dwelling/POB, AND
• MAILING a copy of process (by regular mail) to ∆'s actual POB or last-known address
• filing PROOF OF SERVICE

***In order to use affix-and-mail, must show that personal delivery and leave-and-mail were attempted with due diligence

1) SIGNED ORDER from a court allowing an alternative method of service

2) REQUIREMENTS

• IMPRACTICALITY of other methods of service (personal delivery, leave-and-mail, affix-and-mail)
• EX PARTE motion with court allowing the invented method of service

When ∆ is an infant, process must be served (using any authorized method) on one of the following adults

• 1) parent
• 2) guardian
• 3) any person having legal custody of ∆
• 4) adult spouse to whom ∆ infant is married and with whom ∆ infant lives

***if ∆ infant is ≥ 14 years old, an additional copy of process must be served on the infant—i.e., must serve on both the ∆ infant AND one of the adults mentioned above

• Serve 1 copy (using any authorized method) on mentally incompetent person, AND
• 1 additional copy on court-appointed guardian IF one has been appointed

1) ANY METHOD USED IN NY may be used to serve process outside NY

2) PERSONS AUTHORIZED TO SERVE PROCESS OUTSIDE NY

• NY RESIDENT if authorized under NY law (i.e., non-party at least 18 y/o)
• Anyone authorized to serve process by the laws of the jurisdiction where service is made
• Any attorney licensed in the jurisdiction where service is made

• Personal Delivery
• Service to NY Secretary of State (NYSS)
• First-Class Mail PLUS Acknowledgment

• Officer
• Director
• Designated agent
• Managing agent (person with general supervisory authority)
• Cashier or cashier's assistant

1) PERSONALLY DELIVER 2 copies of process to NYSS (NYSS will forward 2nd copy to corporation for you)

2) UNLICENSED FOREIGN CORPORATION

• Personally deliver 1 copy of process to NYSS
• Certified mail with return receipt 1 copy to ∆ corporation

1) SERVICE MADE in the following manner

• First-class mail process to ∆
• Include 2 copies of statutory acknowledgement form
• Include pre-addressed stamped envelope for return

Service is effective ONLY IF ∆ signs and returns one of the acknowledgement forms within 30 DAYS of receiving the mailed process

2) MAY BE USED TO SERVE PROCESS ON

• Corporations (whether domestic or foreign)
• Natural persons (except infants and mentally incompetent persons)

1) PJ OVER ANY CLAIM regardless of where the claim arose or the claim's connection to NY

• 2) OBTAINED WHEN
• ∆ PERSONALLY SERVED while in NY
• ∆ is DOING BUSINESS IN NY (DBNY)
• ∆ is DOMICILED in NY (at time action is commenced)

1) PJ ONLY OVER CLAIMS ARISING OUT OF

• ∆'s NY ACTIVITIES, OR
• TERMS of contract

2) OBTAINED THROUGH

• Long-Arm jurisdiction
• Non-Resident Motorist statute
• Consent

1) ALWAYS treated as DBNY

2) Unlicensed foreign corporation DBNY when

• AGENT'S OR EMPLOYEES in NY
• engage in COMMERCIAL ACTIVITY for the ∆ corporation on a
• REGULAR, SYSTEMATIC, AND ONGOING basis

1) TRANSACTION OF BUSINESS BY ∆ IN NY (includes substantial communications with NY)

2) CONTRACT to PROVIDE GOODS OR SERVICES IN NY

3) ∆'s OWNERSHIP, USE, OR POSSESSION OF REAL PROPERTY IN NY

4) ∆'s COMMISSION of a TORTIOUS ACT in NY

5) INJURY IN NY, caused by ∆'s tortious act outside NY AND ∆ has additional ties to NY—

• solicitation of business in NY
• persistent course of conduct in NY
• substantial revenue from goods used or consumed in NY
• substantial revenue from services rendered in NY
• reasonable expectation of NY consequences AND substantial revenue from interstate/international commerce

Due process is satisfied if π's claim arises out of conduct of ∆ that is

• PURPOSEFULLY DIRECTED to NY, such that ∆ should
• REASONABLY ANTICIPATE being sued in a NY court

1) APPLIES WHERE π's claim arises out a NON-DOMICILIARY MOTORIST'S

• OWNERSHIP or USE of an automobile on a NY roadway
• PERMISSION to USE automobile on a NY roadway

2) π SERVES PROCESS on non-resident ∆ by

• PERSONALLY SERVING 1 copy of process on NYSS, PLUS
• MAILING 2nd copy of process (by certified mail) to ∆'s out-of-state residence

1) Supreme Court has jurisdiction

2) Court has IN REM jurisdiction over the marriage—i.e., PJ IS NOT NECESSARY

• π-spouse must be DOMICILED in NY, and
• comply with DURATIONAL RESIDENCY requirements

PERSONAL DELIVERY

1) BOTH spouses NY residents

2) EITHER spouse is NY resident for ONE continuous year

3) EITHER spouse is NY resident for TWO continuous years

Both spouses must be NY residents, and grounds for action arose in NY

Either spouse a NY resident ≥ 1 continuous year, and additional NY ties—

• NY marriage,
• NY was matrimonial domicile at some point
• Grounds for action arose in NY

Either spouse a NY resident ≥ 2 continuous years

Court must have PERSONAL JURISDICTION over ∆-spouse (not just in rem, like for status of marriage cases)

YES, if π-spouse is a NY RESIDENT, AND any one of the following

• 1) NY was the matrimonial domicile of both π and ∆ prior to separation, OR
• 2) ∆ abandoned π in NY, OR
• 3) ∆'s monetary obligation accrued under an agreement executed in NY (e.g., separation agreement) OR
• 4) ∆'s monetary obligation accrued under the laws of NY