A writ of habeas corpus may be served on any day. Service shall be made by delivering the writ and a copy of the petition to the person to whom it is directed. If he cannot with due diligence be found, the writ may be served by leaving it and a copy of the petition with any person who has custody of the person detained at the time. Where the person to whom the writ is directed conceals himself or refuses admittance, the writ may be served by affixing it and a copy of the petition in a conspicuous place on the outside either of his dwelling or of the place where the person is detained and mailing a copy of the writ and the petition to him at such dwelling or place, unless the court which issues the writ determines, for good cause shown, that such mailing shall be dispensed with, or directs service in some other manner which it finds reasonably calculated to give notice to such person of the proceeding. If the person detained is in the custody of a person other than the one to whom the writ is directed, a copy of the writ may be served upon the person having such custody with the same effect as if the writ had been directed to him.
§ 7005.Service of the writ.
Article 70. Habeas Corpus · Last amended 1970 · Last verified July 21, 2026
In one sentenceCPLR 7005 sets out how a habeas corpus writ is served -- personal delivery to the person it names, substitute delivery to the custodian if that person can't be found, and posting plus mailing if the named person hides or refuses to accept it.
Full Text of CPLR 7005
Plain-English Summary
CPLR 7005 keeps a habeas writ from being defeated by an uncooperative custodian. Service can happen any day, and the basic method is delivering the writ and a copy of the petition to the person the writ names. If that person cannot be found despite due diligence, the writ can instead be left with whoever has custody of the detained person at that moment -- the statute cares more about reaching real custody than chasing a particular name.
For the custodian who tries to dodge service by hiding or refusing to accept the papers, the statute allows substitute service: posting the writ and petition in a conspicuous spot outside the dwelling or place of detention, and mailing copies to that address, unless the court dispenses with the mailing for good cause or orders some other method it finds reasonably likely to give notice. And if the person holding the detained individual is not the one the writ names, serving that custodian works just as well as if the writ had named them from the start.
Frequently Asked Questions
Can a habeas corpus writ be served on a weekend or holiday?
Yes, CPLR 7005 allows service on any day.
What if the person named in the writ can't be located?
The writ and petition can be left with whoever has custody of the detained person at that time.
What happens if the custodian hides to avoid being served?
The writ and petition can be posted in a conspicuous place outside the dwelling or place of detention and mailed to that address, unless the court dispenses with mailing or orders a different method.
Can the court waive the mailing requirement for substitute service?
Yes, for good cause shown, or the court can direct service by some other method it finds reasonably calculated to give notice.
Does the writ have to be served on the exact person it names?
No, if someone else has custody of the detained person, serving that person has the same effect as if the writ had been directed to them.
Advisory Committee Notes
The first sentence of this section is based upon the last sentence of CPA § 1242. It permits service on Sunday. The second and third sentences of this section are derived from the first three sentences of CPA § 1242 with no change in substance. The last sentence of this section is new. It will avoid the problem faced by a petitioner who discovers, on serving the original writ, that the prisoner has been transferred to the custody of some other person. The question of who may make service is covered in CPLR rule 2103(a). Application of this rule reduces the minimum age of the process server from twenty-one to eighteen years. See CPA § 1243(1); notes to rule 2103(a).
Amendment History
Add, L 1962, ch 308; amd, L 1970, ch 395, eff Sept 1, 1970.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: CPLR 7005 service of habeas corpus writhow to serve habeas corpus New Yorksubstitute service habeas corpus writ NY