The service of process is the start of many legal claims. Whether a person is notifying a past employer that they are suing them for wrongful termination, for example, or a landlord is letting a tenant know that they are starting formal proceedings for eviction, the service of process has to be done and done properly.
When filing a lawsuit against a party, that party needs to be notified that they are being charged and of the charges that are filed against them. This needs to be accomplished within 120 days of filing an index number with the court. The notification will also usually include the consequences of denying or disagreeing with the charges filed. Without the service of process, the case cannot officially start.
Invalid Service of Process
Technically, any person over the age of 18 can serve court documents if they are not involved with the case. A colleague, family member, or friend of the person filing the charges can deliver the papers. Many people, however, choose professional process servers for this task because of the possible consequences for improper service.
One of the most troublesome consequences of improper or invalid service of process is the outright dismissal of the case by the judge. In some cases, there can even be penalties and fines for the person who filed the charges.
The following are examples of instances where improper service of process may have been done.
- The papers are served to the wrong person. This can happen by mistake or when someone else claims the identity of the defendant. The person serving the papers may also opt to leave the documents with a person the defendant has a relationship with if the latter cannot be found. In some cases, a person with the same name may be the one served with the documents instead.
- After attempting and failing to deliver the papers in person, the server may opt to leave the documents on the doorstep. This should be followed by a mailing of the papers. In these cases, the defendant may claim bad or improper service of process if they only receive one of the two supposed copies.
- There are even instances when a server does not even attempt to deliver the papers and claim otherwise. This particular offense can be considered as fraud against the court.
- Any person that serves court documents needs to file an affidavit of service with the court to confirm the details of the service of process. If these details provided are proven false, the service of process may be considered invalid.
Proper Service of Process in New York
In the state of New York there are three methods of serving court documents that are recognized by the law:
- Personal – The papers are delivered to the defendant in person.
- Substitute – The papers are delivered to someone from the defendant’s home or place of business. This person needs to be of age and of sound mind. Another copy of the papers needs to be mailed afterwards.
- Nail and Mail – If several attempts have been made to serve the papers with repeated failure, the documents can be posted on the door. Another copy of the papers needs to be mailed afterwards.
If the service of process was not done according to the abovementioned methods, it may be considered invalid.