R 2103.Service of papers.

(See also Advisory Committee notes preceding § 210, under subheading “Service of papers.”) Subd (a). There was no provision under former law as to who can serve papers in general. The age limitation of subd (a) is based upon CPA § 220 which deals with persons who can serve a summons; it has been adopted for all papers. Cf. NY CPA § 1243 (service of writ of habeas corpus to be made by person over 21). The prohibition against service of a summons by a party has also been made applicable to papers in general.

Subd (b) is derived from CPA §§ 163, 163-a and 164 and of RCP 20. The specific exceptions contained in the CPA sections and RCP rule as to service of a summons and a contempt paper are included under the general exception in this subdivision concerning service otherwise specifically provided for by law. Subparagraph 1 is derived from the opening sentence of RCP 20. The first sentence of subparagraph 2 is derived from subparagraph 1 of RCP 20. The requirement that mailing be from the city, village, or town of the server has been eliminated; mailing under the proposed rule may be from anywhere within the state. With the speed of our modern mail service, mailing anywhere within the state gives sufficient assurance of prompt delivery. The phrase “last known address” is intended to include the last phrase of RCP 20, subparagraph 1. The second sentence of subparagraph 2 of the subdivision is partially derived from § 163-a of the CPA. “Post office” and “official depository” are used as generic terms to include all the depositories listed in § 163-a. The provision that service by mail is complete upon deposit, derived from Federal rule 5(b), represents the law in New York. Jackson & Perkins Co. v Rose Fair, Inc. 278 App Div 890, 104 NYS2d 892 (4th Dept 1951). The third sentence of subparagraph 2 is derived from § 164 of the CPA. No change in substance is intended except for the elimination of a separate provision for notes of issue. Since a note of issue must be served at least twelve days before a term begins (NY R Civ P 150), the application of the general three-day extension for mailing does not differ sufficiently from the provision of CPA § 164 for mail service of a note of issue fourteen days before trial, to merit special treatment. The general rule that three days shall be added to a prescribed period measured from service is intended to apply to both the situation in which there must be a minimum period of notice before an act is to be done and to the situation in which an act is to be done within a maximum period after service. The first part of subparagraph 3 of this subdivision is derived from subparagraph 2 of RCP 20. The limitation on the time of the day during which service can be made by leaving in a conspicuous place is eliminated in favor of the general requirement, existing under former law, that the office be open. If the office is open, no hardship will result from service at another time of the day. If the office is not open, service cannot be made as designated. “Person in charge” is intended to include the partner or clerk specified in the former provision. The second part of subparagraph 3 is derived from subparagraph 3 of RCP 20. The phrase “accessible from without the office” is omitted as unnecessary. It is implied from the fact that the office is closed. Subparagraph 4 is derived from the last phrase of subparagraph 3 of RCP 20. The provision in the second sentence that this method cannot be used unless service cannot be effected at the attorney’s office is similar to the present provision allowing home service only if the attorney’s office is not open; because it is explicitly limited to attorneys, this provision is inapplicable to service on a party pursuant to this subparagraph when incorporated in subdivision (c). The provision of subparagraph 4 of RCP 20, that where service may be made at an attorney’s residence, it may be made on an attorney living out of the state by mailing it to his office within the state from the city, village or town where his office is located, has been eliminated. Since inability to serve the attorney at his office, which may be by mail from anywhere within the state, would be a prerequisite to service at his residence, this provision seems useless.

Provision has been added for service of only one copy where an attorney appears for more than one party. This is based upon the third sentence of CPA § 275.

Subd (c) is derived from RCP 20. The requirement of service upon the party when he has not appeared by an attorney is implicit in the former law. The requirement of service upon the party when his attorney cannot be served is added in preference to service by filing under subd (d) of this rule. Service by filing provides the least adequate notice and should be allowed only as a last resort. The mode of service on a party is derived from the opening sentence and subparagraphs 1 and 5 of RCP 20. The limitation on the time of the day during which service can be made at a party’s residence, contained in subdivision 5 of rule 20, is eliminated. This is in accordance with the former law as to service at an attorney’s residence and service of a summons. There seems no reason to make a distinction.

Subd (d) is derived from parts of subparagraphs 4 and 5 of RCP 20. This method of service is permitted only after all others have failed. The term “filing” is used instead of “leaving it with the clerk” to make clear that it is intended that the clerk keep the paper on file for the inspection of the other party and also to make applicable the filing requirements of new CPLR rule 2102.

Subd (e) is derived from CPA § 163. The requirement that a party in jail for want of bail must be served although he has failed to appear, has been eliminated. There seems no reason to treat a party so confined differently in this respect from a party who fails to appear for another reason. In all cases of excusable neglect, of course, relief may be had from a default judgment. NY Civ Prac Act § 108.

The traditional three days by (which a responding period is extended when the paper to be responded to is served by mail has proved too short in recent years, as the mails ( have been increasingly delayed. The Committee has been asked on a number of occasions in recent years to make a change in CPLR 2103(b) (2), where the three-day period is provided, and has decided to recommend the modest step of increasing it to five days. There have of course been reported instances in which even five days did not do the job, but these have not been frequent. The relatively rare case in which it takes more than five days for first-class mail to reach its goal should not, in the Committee’s view, be made the criterion for amendment. The Committee settled on the five-day suggestion after being apprised of the results of a survey conducted by a large law firm in New York City. Some 90% of mailed papers were received within three days, but 99% were received within five.

If mail service grows worse, further amendment can be made of CPLR 2103(b) (2) at a later time to stretch the extension period further.

1989 Recommendations of Advisory Committee on Civil Practice:

The Committee recommends that CPLR 2103 be amended to provide authorization to serve interlocutory papers upon an attorney or pro se party by overnight courier service. This will expedite the service of interlocutory papers and reflects a form of delivery papers that is used frequently by all businesses and professions.

The Committee recommends that service by express courier (overnight delivery service) should be deemed complete upon delivery of the paper to the express courier service, provided that the express courier service is one approved for this purpose by rule of the Chief Administrator of the Courts, a necessary safeguard against the use of undependable courier services, which might occasion new instances of “sewer service.” The major advantage of utilizing the express courier method of service would be a proposed shortening of the length of time in which the party in receipt of the document is deemed to have received the document, thereby shortening the period in which the party would be required to respond. In this respect, the Committee recommends that the five-day addition to respond contained in CPLR 2103(2) be reduced to one business day where express courier service is used.

The Committee also recommends that the new requirements for overnight delivery service eliminate the feature of mail service that the depository must be “in the state.” There is no reason why an attorney should not be able to entrust an overnight delivery envelope to a delivery service in New Jersey or another state.

1990 Recommendations of Advisory Committee on Civil Practice:

The Committee recommends that the inconsistent numbering of paragraphs and other technical inconsistencies in CPLR 2103 (Service of papers) there were occasioned by the separate enactment in 1989 of Chapters 461 and 478 of the Laws of 1989 be eliminated and the provisions amended by those acts be harmonized. Chapter 461 of the Laws of 1989 amended CPLR 2103 to provide for service of interlocutory papers upon attorneys by electronic transmission (including “fax”), and Chapter 478 amended the same provisions to authorize service of interlocutory papers upon attorneys by overnight courier services, both acts effective on January 1, 1990. Since these enactments were made without reference to one another, they resulted in some structural inconsistencies in the section, including the two different paragraphs both numbered paragraph 5. Clarification is desirable to avoid confusion; no substantive change is intended or made.

1999 Recommendations of Advisory Committee on Civil Practice:

Many members of both Bench and Bar have suggested that greater use be made of new technologies in the filing and service of legal papers in civil proceedings. If properly regulated, such technologies can expedite litigation and reduce its administrative costs to the parties.

This measure is offered in response to these suggestions. It would authorize conduct of two experiments in the filing and exchange of legal documents by means other than the traditional mailing or personal delivery of paper. One experiment would make use of telefax machines and another would make use of electronic mail (or any other available medium for the electronic transmission of documents). The telefax experiment would be conducted in no more than six counties (at least one in each of the four Judicial Departments), as selected by the Chief Administrative Judge with the approval of the Administrative Board of the Courts. The electronic transmission experiment would be conducted in one of New York City’s five counties and in no more than two counties outside the City, likewise selected by the Chief Administrative Judge with the approval of the Administrative Board of the Courts. Both experiments would extend through July 1, 2003, with the Chief Administrative Judge being required, at least three months in advance of that sunset, to report to the Governor, the Legislature and the Chief Judge of the Senate his evaluation of them. Both experiments would apply to the filing of a summons and complaint with a court to commence an action and, as well, to the exchange of legal papers between counsel for the parties in civil litigation.

2014 Recommendations of the Advisory Committee on Civil Practice.

This measure would repeal the language in CPLR 2103(f)(1) that requires papers served by mail be mailed within the State of New York. Subdivision (f) of rule 2103 defines “mailing” for purposes of service of papers in a pending action upon the party’s attorney. This proposal also extends by one day to six days the prescribed period of time for response to a paper when service under this section by mail is made by depositing papers with the Postal Service from outside the state.

The Committee takes particular note of a recent decision by the Appellate Division, First Department, holding insufficient service by mail made outside the State but in every other aspect made correctly with the United States Postal Service (M. Entertainment, Inc. v. Leydier (2009 NY Slip Op 04169)(May 28, 2009)reversed on other grounds, 2009 NY Slip Op 07671 (October 27, 2009)). Notably, the dissent points out that the relevant notice of appeal was served by mail by depositing it with the Postal Service in New Jersey, instead of New York.

The Committee notes that CPLR 2103(b)(6), the rule regarding service upon an attorney via dispatch by overnight delivery service (CPLR 2103(b)), does not require such dispatch to be made within the State, only that the service regularly accept items for overnight delivery within the State, as follows:

“(b) Upon an attorney. Except where otherwise prescribed by law or by order of court, papers to be served upon a party in a pending action shall be served upon the party’s attorney. Where the same attorney appears for two or more parties, only one copy need be served upon the attorney. Such service upon an attorney shall be made:*** “6. by dispatching the paper to the attorney by overnight delivery service at the address designated by the attorney for that purpose or, if none is designated, at the attorney's last known address. Service by overnight delivery service shall be complete upon deposit of the paper enclosed in a properly addressed wrapper into the custody of the overnight delivery service for overnight delivery, prior to the latest time designated by the overnight delivery service for overnight delivery. Where a period of time prescribed by law is measured from the service of a paper and service is by overnight delivery, one business day shall be added to the prescribed period. “Overnight delivery service” means any delivery service which regularly accepts items for overnight delivery to any address in the state; or...”(emphasis added).

The Committee believes the rule for mailing should correspond with that for a delivery service. The Committee also believes that allowing service by mail from outside the State will remove an artificial barrier to service and encourage litigation to be brought in New York. Finally, the act of removing this requirement recognizes the current realities of multi-state practice and the increased mobility of litigants and litigation.

2015 Recommendations of the Advisory Committee on Civil Practice.

The Committee recommends this measure which would repeal the language in CPLR 2103(f)(l) that requires that papers served by mail upon an attorney in a pending action be mailed within the State of New York. This measure also extends by one day, to six days, the prescribed period of time for response to such papers when they are served by mail from outside the State but within the geographic boundaries of the United States.

We take particular note of a recent decision by the Appellate Division, First Department, holding service by mail made outside the State insufficient (M Entertainment, Inc. v. Leydier (2009 NY Slip Op 04169) (May 28, 2009) reversed on other grounds, 2009 NY Slip Op 07671 (October 27, 2009)). In response, our Advisory Committee points out that CPLR 2103(b)(6), the rule regarding service upon an attorney via dispatch by overnight delivery service, does not require such dispatch to be made within the State, only that the service regularly accept items for overnight delivery within the State, as follows:

“(b) Upon an attorney. Except where otherwise prescribed by law or by order of court, papers to be served upon a party in a pending action shall be served upon the party’s attorney. Where the same attorney appears for two or more parties, only one copy need be served upon the attorney. Such service upon an attorney shall be made:*** “6. by dispatching the paper to the attorney by overnight delivery service at the address designated by the attorney for that purpose or, if none is designated, at the attorney's last known address. Service by overnight delivery service shall be complete upon deposit of the paper enclosed in a properly addressed wrapper into the custody of the overnight delivery service for overnight delivery, prior to the latest time designated by the overnight delivery service for overnight delivery. Where a period of time prescribed by law is measured from the service of a paper and service is by overnight delivery, one business day shall be added to the prescribed period. "Overnight delivery service" means any delivery service which regularly accepts items for overnight delivery to any address in the state; or…”(emphasis added).

The Committee's view is that the rule for mailing should correspond with that for a delivery service. The Committee also believes that allowing service by mail from outside the State will remove an artificial barrier to service and encourage litigation to be brought in New York. The act of removing this requirement recognizes the current realities of multi-state practice and the increased mobility of litigants and litigation. Finally, the measure has been amended to be limited in scope and application to the geographic boundaries of the United States.

This measure would have no fiscal impact on the State. It would take effect on the first day of January next succeeding the date on which it shall have become law.

Add, L 1962, ch 308, § 1; amd, L, 1963, ch 539, § 1, by Judicial Conference (1971); L 1982, ch 20, § 1; L 1989, ch 461, § 1, eff Jan 1, 1990; L 1989, ch 478, §§ 1, 2, eff Jan 1, 1990; L 1990, ch 244, §§ 1–3; L 1999, ch 367, §§ 3–5, eff July 27, 1999; L 2009, ch 416, § 1, eff Sept 1, 2009; L 2015, ch 572, §§ 1, 2, effective January 1, 2016.