R 306.Proof of service.

This section represents a simplification of the overcomplicated rule 53 of the RCP. It is modeled in part upon Federal rule 4(g). Unlike the Federal rule, it follows rule 53 in specifying the requisites of the proof of service. The Federal rule requires that proof of service be made to the court within the time during which the person served must respond to the process. This requirement need not be incorporated in New York rules since, contrary to the Federal practice where the summons is issued by the clerk and all papers are filed, in New York a summons and complaint are usually not filed until long after time to answer has expired, if ever. The New York “hip-pocket” filing system works well and is retained. Sound office practice will, of course, require that an affidavit be made by the process server as soon after service as possible.

1989 Recommendations of Advisory Committee on Civil Practice:

The Committee proposes the adoption of a provision permitting, as an alternative to the methods of personal service of process now set forth in CPLR sections 307, 308, 310, 311 and 312, personal service of process by mail. It adds a new CPLR 312-a, applicable to civil practice generally, conforms CPLR 306(d) and adds related and supplemental provisions for taxation of disbursements to the New York City Civil Court Act and the Uniform Court Acts.

Service of process by personal delivery has generated growing problems of expense to litigants. The frequency of traverses and of litigation concerning whether personal service actually was obtained, the frequent need to resort to secondary and substituted service, and recurring reports of sewer service, all add to the advisability of devising a cheaper, surer and more efficient means of personal service.

In its search for viable alternatives, the Advisory Committee was impressed by its investigation of Federal Rule 4(c)(2)(C)(ii), enacted by Congress in 1983 (Pub. L. 97-462) and operative in the Federal courts since February 26, 1983. The rule provides for service of process by mail, with acceptance of such service optional with the defendant. Failure to acknowledge in a timely manner receipt of, and acceptance of service by the defendant requires the plaintiff to resort to other more expensive methods of service, but the defendant then is liable for the expense of the alternate method of service that is utilized if the plaintiff is awarded costs in the action.

This method of service of process by mail has been successfully employed in those courts where it currently is being used. The Committee is advised by the clerks’ offices of the United States District Courts for the Southern and Eastern Districts of New York that mail service is working well and is used by a majority of attorneys. The Committee also is advised that the State courts in California have adopted this optional method of service. Service of process by mail now is used universally in the small claims courts throughout New York State (as authorized by § 1803 of the New York City Civil Court Act and the Uniform Court Acts), and the Committee has been advised that many judges and attorneys involved in landlord and tenant matters favor the concept of service of process by mail.

This measure follows in large part the successful federal model, as improved by greater specificity to avoid some ambiguities in the federal scheme. It provides that service of process may be made by mailing, by first class mail, postage prepaid, a copy of the summons and complaint (or summons and notice, or notice of petition and petition), and that two copies of a statement of service by mail and instruction form and an acknowledgment of service form be enclosed, together with a self-addressed, stamped return envelope. It further provides that the acknowledgment must be completed and a copy mailed or delivered within 30 days of receipt. If no acknowledgment of service is received by the sender, the sender may resort to the other methods of service now prescribed by the CPLR.

The acknowledgment of receipt form must be signed under penalty of perjury. The action is commenced and service is complete on the date the signed acknowledgment of receipt is mailed or delivered to the sender. The statement contains a warning that it is a crime to forge a signature or to make false entry on the acknowledgment.

The acknowledgement of receipt form is to be subscribed and affirmed under penalty of perjury analogous to affirmations under CPLR 2106.

To encourage the acknowledgment of mail service, this measure expressly provides that, if the acknowledgment is not returned to the sender, the court is authorized to tax as a disbursement the expense of service of process by another method and to enter this as a judgment in favor of the plaintiff, provided that the plaintiff is awarded costs in the action. Courts are experienced in allowing reasonable expenses when taxing costs, and they will be guided in allowing such disbursement by receipted bills, by supporting affidavits, and, where necessary, by what their experience shows generally is charged for such service by process servers and publishers. Of course, a party against whom a judgment for such costs is to be entered may object, by affidavit, to the taxation of this disbursement, and, if such party prevails, this disbursement would not be added to the bill of costs. Where there is a default in appearance and, therefore, taxation of costs on judgment is permitted without prior notice (see CPLR 8402), a retaxation of costs readily can be obtained by the defendant under CPLR 8403 after service of the required subsequent notice. In effect, a defendant who ultimately loses in the action can minimize the bill of costs and disbursements incorporated in the judgment against such defendant by accepting service by mail initially, thereby saving expense to both the plaintiff and the defendant.

Since Federal law restricts the taking of default judgment against persons in military service, the acknowledgment requires the person served to state whether he or she is in military service. If in service, such person is required to state his or her rank, serial number and branch of service in the space provided in the acknowledgment form. Failure to supply the required information would signify that such person is not in military service and thus facilitate the entry of a default judgment if no answer is served.

Special provision has been made, in consideration of suggestions made by consumer groups and the Attorney General, further to eliminate problems attendant upon defaults entered against poorer defendants who may not be represented by counsel, and to further guard against “sewer service.” Thus, CPLR 312-a(a) would provide that process shall be served by mail only by the plaintiff, plaintiff’s attorney or an employee of the attorney, thereby reducing the danger of sewer service. CPLR 312-a(f) (Disbursements) and new section 1908-a of the New York City Civil Court Act and the uniform court acts, (Disbursement where service of process by mail is not acknowledged) contain the disbursement provisions for failure to acknowledge service of process by mail.

Additional notice to litigants of the application of the new mail service to the lower courts would be effected by an amendment of section 403 (summons; method and place of service), to be incorporated in the New York City Civil Court Act and the uniform court acts.

New CPLR 312-a would provide that if the Acknowledgement of Service by Mail Form is not returned as required, and an alternative method of service follows, notice of the previous attempt to effect service by mail shall be set forth on the summons or papers served therewith.

The new statute would provide that where a complaint or petition is served with a summons or notice of petition, the defendant shall serve an answer within 20 days after the date the signed acknowledgment of receipt is mailed or delivered to the sender.

The proposed method of personal service by mail is an optional and alternative method of personal service that would be available to plaintiffs in all civil actions and special proceedings commenced in any court, but would not be applicable to summary proceedings, small claims or Family Court proceedings that are governed by special statutes, all of which provide for specialized procedures for serving process which are unique to those proceedings. The right to use other methods authorized by Article 3 of the CPLR is preserved by this measure, which is especially significant for those who wish to effect service immediately or who are concerned about the running of the statute of limitations.

This measure should facilitate and lessen the expense of making personal service in New York State and result in a decrease in the litigation of issues of service.

Add, L 1962, ch 308, § 1, eff Sept 1, 1963; amd, L 1973, ch 397, § 1; L 1977, ch 103, § 1, eff Jan 1, 1978; L 1989, ch 274, § 1, eff Jan 1, 1990; L 2024, ch 473, § 2, effective November 22, 2024.