Few things in civil litigation are more frustrating than trying to get process served on a defendant or a witness who just won’t “cooperate.” We’d all like to just send a process server to the defendant’s address and get him or her served, personally, the first time there. Done. Finished. But life doesn’t work that way, does it?
I grant you, nobody is required to “accept” process. Not even attorneys, officers of the court though they be. Even so, serving process, properly, in a legally sufficient manner is not optional. It’s a requirement. When it is done swiftly and easily, the expense is minimized and the case can move along. But hit a snag on getting this done and the costs can go up quickly and the case, or the proceeding, can literally grind to a halt.
Even under the best of circumstances, though, serving process properly, meaning keeping all the books and records in order, following all the rules and laws, and going out there into the streets in the rain or snow, at night or early morning, is an arduous task. Each attempt costs time and money.
For obvious reasons, serving process to a person by in-hand delivery is always the best thing to do. Second best is by delivery to a person of “suitable age and discretion.” And it’s perfectly legal in most circumstances to effect that kind of service on the very first attempt. But let’s keep in mind that some process, like a Citation in Surrogate’s Court, may have to be served to a person only by in-hand delivery.
In the real world we live in there are many factors that can prevent the successful service of process on the first attempt, or the second, or possibly numerous subsequent efforts. Like time after time the process server finds nobody home? Or maybe somebody is inside the home but just won’t open the door? It may even be that the people in the home are away on vacation. Or, of course, it may be that the person you’re trying to serve is actively attempting to avoid being served, no matter how many trips your process server makes to the location.
In those difficult situations, either by statute or by leave of the court, process will be served. This is where the idea of “due diligence” comes in. If you need the authority to serve by some method other than personal delivery or a person of suitable age and discretion (where that’s an option), you’re going to have to show that you tried, really tried, to serve your defendant but just could not do so in the preferred manner.
In certain situations by statute, New York does allow you to “nail and mail” process at a person’s home, or even his or her place of business. In other situations it is up to the court to allow some alternate method of service. In either situation, to comply with the statute or to be successful in your application to the court, you’ll have to have done sufficient “due diligence” to show that the desired methods of service have not proved possible after reasonable and repeated efforts. What perplexes us all is to know, in any situation, what amount of effort constitutes sufficient due diligence, without having expended so much effort that we’re wasting time and money.
Ever wonder how long a boat has to be before it’s a ship? Same conundrum with regard to how many process serving attempts at an address, and at how many addresses, constitutes sufficient “due diligence.” Keep in mind that if the person you’re seeking to serve has more than one address, be it a place of business or maybe even a vacation home somewhere, you’ll want to be sure some effort was made to serve process at those other addresses.
Sadly in New York there is no statutory or even court rule that clearly defines “due diligence” in all circumstances. But there are a good number of court decisions and I’m sure you can find them.
The unofficial rule over the years, such as it was, held that due diligence meant three attempts over two calendar days. But that is overly simplified.
Remember, you don’t need the court’s permission to serve by “nail & mail.” But since we all know that this method of service is the least desired and most vulnerable to attack, it would be prudent to not only make sure you have more than the minimum number of attempts made, but that you assure yourself that those attempts are made on days and at times reasonably calculated to actually find your defendant, or someone, at the location. You’ll also want to make sure you’ve made an attempt to serve on a Saturday (unless the defendant is religious and observes Saturday as his or her day of worship). And you may find that on the Nth attempt to serve, you luckily find someone at the location, only to learn that your defendant moved from there and that you cannot legally effect any service of process there.
If you do need the court’s permission to serve by some other method, after having made numerous attempts to serve, you may be in for a rude surprise. You may think you’ve already made lots of attempts but you may find your court has a very idiosyncratic interpretation of “sufficient due diligence.”
Look, nobody wants to spend a minute or a dime more on getting service of process accomplished than is absolutely necessary. Making numerous attempts to serve process can seem like a waste of time, energy and money. But if you don’t do this correctly, the price you’ll pay may come months or years in the future. Could be a very steep price. Be aware.
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