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N Cal Attorney
N Cal Attorney, Attorney
Category: Family Law
Satisfied Customers: 9083
Experience:  since 1983
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I believe I was illegally served with papers by my ex last

Customer Question

Hi. I believe I was illegally served with papers by my ex last night. He said in an email that he was coming over to talk, so I left the door open. He came and put the papers on my counter. She came behind him and said "you've been served" and they both left.
Submitted: 1 year ago.
Category: Family Law
Expert:  N Cal Attorney replied 1 year ago.

Was the person who served the Summons a party to the case?

Customer: replied 1 year ago.
The person who physically put the paperwork on my counter is the petitioner. His girlfriend walked in behind him and said "you've been served." After they left, the papers fell into the kitchen sink. I emailed the petitioner and told him I couldn't read the papers, so he emailed me a copy.
Expert:  N Cal Attorney replied 1 year ago.

Thank you for that information.

It means that the service was invalid, see

https://www.nycourts.gov/courts/1jd/supctmanh/Self-Rep%20Forms/How%20to%20Serve.pdf

which states:

"The person serving papers must be over the age of 18 and cannot be a party to the case."

You can file a motion to quash service because you were not legally served by a non-party.

I hope this information is helpful.

Customer: replied 1 year ago.
Thank you. There were no witnesses present. Will this affect anything? I do, of course, have the email with the papers that he (the petitioner) personally sent me.
Customer: replied 1 year ago.
How do I file a motion to quash service?
Expert:  N Cal Attorney replied 1 year ago.

The County Law Library will have legal form books with sample motions. I am not allowed to prepare legal documents for you, under the rules of this web site.

Customer: replied 1 year ago.
There were no witnesses present when I was served in person. Will this affect anything? I do, of course, have the email with the papers that he (the petitioner) personally sent me. Is he legally permitted to email them to me?
Expert:  N Cal Attorney replied 1 year ago.

Witnesses are not needed to prove valid service. Service by email is not allowed.

The motion to quash service of process would include a declaration by you stating that happened and stating that the papers were not served by a non-party.

Customer: replied 1 year ago.
I'm sure he will argue that he was not the one to serve me in person, so it will be my word against his. He entered my apartment, and brought his girlfriend with him. Was he permitted to be present, even if he had not been the one to hand over the papers?
Expert:  N Cal Attorney replied 1 year ago.

Yes, a party can be present when a non-party hands you the papers.

Customer: replied 1 year ago.
Where do I go/who do I talk to in order to file a motion to quash service?
Expert:  N Cal Attorney replied 1 year ago.

The County Law Library will have legal form books with samples of motions to quash.

Customer: replied 1 year ago.
I submit the completed forms there?
Customer: replied 1 year ago.
Also, because it will be my word against theirs, what is the likelyhood of it getting quashed? I can't prove that he handed the papers over. I can prove that he later emailed them to me.
Expert:  N Cal Attorney replied 1 year ago.

No the motion has to be served and then filed in Court.

Did the other party file a proof of service of the summons and complaint? If so, do you have a copy?

Customer: replied 1 year ago.
Served to whom? Which court (I live in Brooklyn)? Who do I give it to? I contacted this service because I don't know anything about this process and need specific advice about how to proceed. I'm sorry, but this seems very vague to me.I have no idea if they filed proof of service. I did not receive a copy.
Expert:  N Cal Attorney replied 1 year ago.

You might want to go the the court named on the summons and ask to see the file. If the proof of service states that the papers were served by the petitioner, that greatly helps your ability to win a motion to quash.

You have to serve the opposing party with any motion to quash prior to filing it with the court.

May I ask what type of case this is?