CPLR Article 3: Jurisdiction, Service, Appearance, and Choice of Court

JURISDICTION

  • Definition of Jurisdiction: Jurisdiction is defined as the legal ability of a court to hear the case brought before it.

  • Dual Requirement: For a court to hear a case, it must satisfy the requirements of BOTH types of jurisdictions: Personal Jurisdiction and Subject Matter Jurisdiction.

PERSONAL JURISDICTION

  • Definition: Personal jurisdiction refers to the jurisdiction over a specific person (the defendant).

  • Method of Acquisition: This is obtained by serving the summons on the individual.

  • Limitations: There are specific legal limitations on the ability of a New York State Court to obtain personal jurisdiction over individuals who are not residents of the state.

  • Jurisdiction over Non-Domiciliaries: The court has the authority to issue orders over a non-domiciliary (non-residents or businesses not located in NY) when the defendant has done any of the following:

    • Transacts business within New York State.

    • Commits a tortious act within New York State.

    • Commits a tortious act outside of New York State, but that act causes injury within New York State.

    • Owns property within New York State: The court possesses legal authority to issue orders affecting that property even if the owner was not served in NY or does not reside in NY.

    • Matrimonial Actions: The court can exercise jurisdiction against non-residents if New York State was the matrimonial domicile (where the parties lived when they were married) and the petitioner (plaintiff) continues to reside in New York.

CPLR 303 - ATTORNEY DESIGNATED AS AGENT FOR SERVICE

  • Designation by Lawsuit: A non-domiciliary who files a lawsuit in New York automatically designates their attorney as the agent for service of process regarding all other areas.

  • Out-of-State Plaintiffs: An out-of-state plaintiff filing a lawsuit in NY designates their attorney to receive service. If no attorney is designated, the Clerk of Court acts as the agent for service of process for separate lawsuits filed by the defendant against that plaintiff.

SUBJECT MATTER JURISDICTION (SMJ)

  • Definition: The court must possess the legal authority to hear cases regarding the specific subject or main issue of the dispute.

  • Court-Specific Examples:

    • Family Court: Has subject matter jurisdiction over custody issues.

    • Limitations: An automobile accident case cannot be filed in Family Court because the court lacks the SMJ to hear such disputes.

  • Filing Determination: SMJ determines the specific court where a case must be filed, such as Supreme Court, Family Court, or Surrogate’s Court.

PARTIES TO A CIVIL PROCEEDING

  • Plaintiff: The individual who files the lawsuit and seeks relief or judgment from the court.

  • Defendant: The individual against whom the action is filed.

  • Alternative Terminology: In specific contexts (Family Court, Surrogate’s Court, Housing Court, and certain Supreme Court cases), the parties may be referred to as the "Petitioner" and the "Respondent."

STEPS TO A CIVIL PROCEEDING: FILING

  • Commencement of Action: Actions are commenced by filing a Summons and Complaint or a Summons with Notice, along with the payment of a filing fee (CPLR 304).

  • Special Proceedings: These are commenced by filing a petition.

  • Role of the Clerk of Court:

    • All papers must be filed with the Clerk in the court and county where the action is to be commenced.

    • The Clerk is required to date stamp all papers and maintain a record of the filing.

    • The Clerk must return a copy to the filing party and assign a unique Index Number (CPLR 306-a).

  • Index Number: A unique identifier assigned to every lawsuit (e.g., 123456/2024123456/2024).

  • Electronic Filing: Filing is permitted via FAX or other electronic means. This same method is permitted when serving an attorney (CPLR 2103).

CPLR 305 - SUMMONS REQUIREMENTS

  • Mandatory Summons Content: The summons must explicitly state the basis of venue, the plaintiff’s address, the index number, and the date the papers were filed with the clerk.

  • Consumer Credit Transactions: The summons must prominently display the phrase "Consumer Credit Transaction" across the top. It must also specify the defendant's county of residence and the county where the transaction occurred.

  • Summons with Notice: This is utilized when the complaint is not served along with the summons. The notice must specify the nature of the action, the relief sought, and the specific amount of money requested (the money requirement is excepted in medical malpractice cases).

SERVICE OF PAPERS AND DUE PROCESS

  • Definition of Service: The method of providing formal notice to the opposing party that a case has been initiated against them. It is the mandatory first step following filing.

  • Timeframes for Service (CPLR 306-b):

    • General rule: Papers must be served within 120 days120\,\text{days} after filing.

    • Election Law Exception: In election law cases where the statute of limitations is 4 months4\,\text{months} or less, the summons and complaint must be served within 15 days15\,\text{days} of the expiration of the statute of limitations.

    • Failure to Serve: If service is not completed within these windows, the case may be dismissed or the court may extend the time for service (CPLR 306).

  • Service Eligibility: Any person who is at least 18 years old18\,\text{years old} and is not a party to the action can serve the papers.

PROOF OF SERVICE REQUIREMENTS

  • CPLR 306-D: Documentation must be submitted to the clerk. For Consumer Credit Transactions, the plaintiff must submit a stamped, unsealed envelope addressed to the defendant containing a notice.

  • Affidavit specifics: The proof of service (or certificate if by a public servant) must include:

    • The specific papers served.

    • The identity of the person served.

    • The date, time, and specific address of service.

    • For personal delivery: A physical description of the person served (approximate height, skin color, weight, age, etc.).

    • For alternate service: The date, time, and address of attempts at personal service (per CPLR 308[4]).

    • A written admission of service by the person served is considered adequate proof.

CPLR 308 - RULES FOR SERVICE UPON INDIVIDUALS

  • Methods of Service:

    • Personal Delivery: Handing the papers directly to the defendant.

    • Suitable Age and Discretion ("Leave and Mail"): Delivering the papers to a person of suitable age and discretion at the defendant's home or place of business, AND mailing them via first-class mail to either the home or business address. Mailing must occur within 20 days20\,\text{days} of the delivery.

    • Designated Agent: Delivery to an agent designated under CPLR 318.

    • "Nail and Mail" (CPLR 308[4]): Affixing the summons to the door of the business or abode and mailing a copy. This is only permitted if personal delivery or "Leave and Mail" cannot be achieved despite "due diligence."

    • Court-Directed Service: Service in any manner the court directs upon a motion.

  • Completion of Service: Proof of service must be delivered to the clerk within 20 days20\,\text{days} of completion. Service is legally deemed complete 10 days10\,\text{days} after filing with the Clerk.

SERVICE UPON SPECIFIC ENTITIES

  • The State (CPLR 307):

    • Delivered to the Attorney General or an Assistant Attorney General.

    • Delivered to the officer or chief executive officer of the agency, or by certified mail, return receipt requested. Letters must be marked with the words "Urgent Mail."

  • Infants (CPLR 309):

    • Delivered to a parent, legal guardian, or legal custodian of a child (under 1818). If the infant is married to an adult, delivery may be to the spouse.

    • If the infant is 14 years old14\,\text{years old} or older, the infant themselves must also be served.

  • Incompetents: Personal delivery must be made to BOTH the committee and the incompetent individual. The court may waive service upon the incompetent.

  • Conservatees: Personal delivery to the conservator and the conservatee. The court may waive service upon the conservatee.

  • Partnerships (CPLR 310):

    • Personal delivery to any partner.

    • Delivery to a managing/general agent or person in charge of the office AND mailing to the partner's home/business.

    • "Nail and mail" if due diligence fails.

    • Delivery to an authorized employee.

    • Any manner designated by the court.

  • Corporations (CPLR 311): Delivery to an officer, director, managing or general agent, cashier or assistant cashier, or an authorized agent.

  • Governmental Subdivisions (CPLR 311):

    • NYC: Delivered to the Corporation Counsel or a designated agent.

    • Other Cities: Mayor, comptroller, treasurer, counsel, or clerk.

    • Counties: County clerk, attorney, treasurer, or chair of the board of supervisors.

    • Towns: Supervisor or clerk.

    • Villages: Mayor, clerk, or any trustee.

    • School Districts: Any school officer.

    • Special Districts (Park, Sewage, etc.): Any trustee or board member.

  • Courts, Boards, or Commissions (CPLR 312): Delivery to any judge (if the court has at least 3 judges3\,\text{judges}) or the chairman of the board/commission. For LLCs, delivery to any member within the state.

CPLR 312-a - SERVICE BY MAIL

  • Procedure: Permitted via first-class mail. Must include the summons and complaint (or notice) plus two copies of an acknowledgment of receipt form.

  • Completion: Service is complete when the acknowledgment is returned to the plaintiff by mail.

  • Liability: The acknowledgment must be returned within 30 days30\,\text{days}. Failure to return it makes the defendant liable to the plaintiff for the costs of subsequent personal service.

  • Response Time: The defendant must answer within 20 days20\,\text{days} of mailing the signed acknowledgment of receipt.

SERVICE OUTSIDE NYS AND BY PUBLICATION

  • Service Outside NYS (CPLR 313): A New York domiciliary (resident person or entity) can be served anywhere in the world.

  • Service by Publication (CPLR 315 & 316):

    • Requires a court order.

    • General Cases: Published in 2 newspapers2\,\text{newspapers} (at least one English-speaking) once per week for 4 successive weeks4\,\text{successive weeks}.

    • Matrimonial Actions: Published in 1 newspaper1\,\text{newspaper} for at least 3 successive weeks3\,\text{successive weeks}.

    • Timing: First publication must occur within 30 days30\,\text{days} of the court order.

    • Completion: Deemed complete 28 days28\,\text{days} after the first publication (21 days21\,\text{days} for matrimonial actions).

    • Requirements: Plaintiff must first mail the summons. The publication must include the money amount (except medical malpractice) and a brief description of any relevant real property.

REOPENING CASES (CPLR 317)

  • Eligibility: Applies to default judgments where service was performed by any method OTHER than personal delivery.

  • Time Limits: The defendant has 1 year1\,\text{year} from discovering the judgment entry to move to reopen, but this cannot exceed 5 years5\,\text{years} from the date the judgment was originally entered.

  • Required Findings: The court must find that the defendant did not receive personal notice in time to defend and that they have a meritorious defense.

DEFENDANT'S APPEARANCE (CPLR 320)

  • Definition: Official participation in the case. Physical Presence is not required.

  • Standard Methods of Appearance:

    • Serving an ANSWER.

    • Serving a NOTICE of APPEARANCE.

    • Making a MOTION.

  • Timing to Appear:

    • Personal Delivery: 20 days20\,\text{days} after service.

    • Extensions to 30 days30\,\text{days}: Occurs if the defendant is a state official, if service was via CPLR 308(2-5) (methods other than personal delivery), if served via publication/designated agent (314/315), or if served outside NYS (CPLR 313).

ATTORNEYS AND REMOVAL

  • Representation: An attorney may appear for any party. Corporations MUST appear by an attorney (CPLR 321).

  • Changes: A form must be filed with the clerk to change attorneys. Withdrawal requires a court order.

  • Removal (Choice of Court):

    • Case can move from lower court to higher court or vice-versa.

    • Monetary Threshold: A case may move between Supreme and Civil Court if damages are within the Civil Court threshold of $50,000\$50,000.

    • Consent: Possible if all parties agree to reduce damages.

    • Restriction: Cases cannot be transferred after the Notice of Trial is issued.

  • Note of Issue (CPLR 3402): The mechanism to place a case on the trial calendar. It can be filed after issue is joined or at least 40 days40\,\text{days} after service is complete.

QUESTIONS & ANSWERS

  • Question 1: T/F? CPLR 306 Proof of service shall be in the form of an affidavit if service is made by a sheriff or other public servant.

    • Answer: FALSE. Proof shall be in the form of a CERTIFICATE if made by a sheriff or public servant.

  • Question 2: CPLR 316 First publication shall be made within _____ days after the order allowing service by publication is granted.

    • Answer: a) 3030

  • Question 3: CPLR 309 An infant of the age of _____ or over must also be served.

    • Answer: b) 1414

  • Question 4: CPLR 317 A person not served by personal delivery has up to _______ year after he discovers default judgment to come in and defend action but no more than _____ years after entry of judgment.

    • Answer: d) 1…51\dots 5

  • Question 5: T/F? CPLR 316 A court order is needed for service by publication.

    • Answer: TRUE

  • Question 6: CPLR 305 In a _____________________________, county of residence of defendant (if within NYS) and county where transaction took place (if within NYS) must appear on the summons.

    • Answer: CONSUMER CREDIT TRANSACTION

  • Question 7: T/F? CPLR 308 In service to person of suitable age and discretion, mailing must be done within 30 days30\,\text{days} of service to person of suitable age and discretion.

    • Answer: FALSE (20 days20\,\text{days})

  • Question 8: CPLR 316 Which of the following is proper service by publication pursuant to an order in a non-matrimonial action?

    • Answer: b) publication in 2 newspapers2\,\text{newspapers}, at least 11 in English, at least once in each for 4 consecutive weeks4\,\text{consecutive weeks}

  • Question 9: CPLR 316 With regard to service by publication in a non-matrimonial action, service is deemed complete on the _____ day after the first publication.

    • Answer: d) 2828

  • Question 10: T/F? CPLR 304 If filing is by electronic means, clerk must notify filing party of index number and date and time of filing.

    • Answer: TRUE