COMMENCING A LAWSUIT: SERVICE OF PROCESS
By Samuel Caldarone
Edited by Jeffrey Davis, Esq.
Commencing a lawsuit in New York requires two thing: (1) filing a Summons and Complaint and (2) serving the Summons and Complaint. This article will address the second step to commencing a lawsuit: “service of process.”
Once you’ve filed your Summons and Complaint the next step is to hire someone to deliver the Summons and Complaint to the correct defendant(s). The action of delivering the Summons and Complaint is called “serving” or “service of process” and the individual who delivers the Summons and Complaint is called a “server” or a “process server.” Any individual over the age of 18 can be a process server, and they typically charge $100-150 per defendant.
If suing an individual, service can be made either (1) directly to the person, (2) to the person’s place of business or “usual place of abode,” (3) delivering to an “agent” of the person (someone the individual has appointed to receive service), or (4) by affixing the summons to the door of either the actual place of business or “usual place of abode” of the individual (after you’ve made multiple good faith attempts to serve them directly).
If suing a limited liability company (LLC), service must be made upon any “member”, “manager”, or “agent” of the company. What this means is that service must be made to whomever is basically in charge of the company or has been otherwise appointed by the company to receive service. You can usually find this person and their address by searching the company’s name on the New York Department of State website.
Tracking down a “member,” “manager, or “agent” can sometimes be difficult.
The bulletproof way to serve an LLC (or a corporation for that matter) is to serve the Summons and Complaint upon the New York Department of State instead. This is because the Secretary of State acts as an agent for all companies registered in New York. The Department of State then sends a copy to the address on file for that company. It doesn’t matter if the address on file has not been updated, that’s on the company/defendant to update that address. If they failed to update their address with the Department of State then that usually will not constitute a reasonable excuse for failing to answer or respond to the Summons and Complaint.
For more information please contact us to discuss your specific circumstances.