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Ray
Ray, Lawyer
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Experience:  30 years in civil, probate, real estate, elder law
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How to serve a family court restraining order in NY

Customer Question

I need to serve a lady in NY with a Kings County (Brooklyn) family court restraining order (hearing date Friday August 26) and also to serve her with a Kings County Civil Supreme Court summons/complaint form for breach of contract. But this lady won't meet with anyone to receive them. They don't have a set place of work (freelancer) but probably has a specific work address starting Monday August 29th, nor set hours, and she is between apartments until Oct 1. She hired an attorney but I am representing myself to save money after she stole a lot of $$ from me. I have a friend (retired marine) who is willing to serve her but we can't track her down.
Can I serve her attorney instead? or send her certified mail? or contact her various recent bosses who probably know her whereabouts? or serve the papers to one of them on her behalf??
I am running at a huge bediget deficit because I am a single mom with a child who has brain tumors and needs to attend a special ED school in September that requires upfront tuition payments of 70K and I am waiting for the doe reimbursement for that. I really only need to serve her the papers. I don't need an attorney at this point
I think her lawyer needs the papers that she is being served. IF I am allowed to have her attorney served instead of the defendant served directly.
Submitted: 11 months ago.
Category: Legal
Expert:  Ray replied 11 months ago.
Hi and welcome to JA.
You can contact lawyer and ask him if he will accept service for her. If the lawyer agrees to do so then this solves the problem. Otherwise you have to try to locate her here. You could pay for service here, the sheriffs/constables usually are able to get a hold of her and serve. They are pretty sneaky about it, they may tell her deputy so and so needs to speak to her.
It is not easy here if the lawyer will not accept service, you have to be persistent here and your friend and you will have to do some more snooping to try and locate her for service here.

Rule 305. Summons; supplemental summons, amendment.

  • Summons; supplemental summons. A summons shall specify the basis of the venue designated and if based upon the residence of the plaintiff it shall specify the plaintiff`s address, and also shall bear the index number assigned and the date of filing with the clerk of the court. A third-party summons shall also specify the date of filing of the third-party summons with the clerk of the court. The summons in an action arising out of a consumer credit transaction shall prominently display at the top of the summons the words “consumer credit transaction” and, where a purchaser, borrower or debtor is a defendant, shall specify the county of residence of a defendant, if one resides within the state, and the county where the consumer credit transaction took place, if it is within the state. Where, upon order of the court or by stipulation of all parties or as of right pursuant to section 1003, a new party is joined in the action and the joinder is not made upon the new party’s motion, a supplemental summons specifying the pleading which the new party must answer shall be filed with the clerk of the court and served upon such party.
  • Summons and notice. If the complaint is not served with the summons, the summons shall contain or have attached thereto a notice stating the nature of the action and the relief sought, and, except in an action for medical malpractice, the sum of money for which judgment may be taken in case of default.
  • Amendment. At any time, in its discretion and upon such terms as it deems just, the court may allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced.

Rule 306. Proof of service.

  • Generally.
    Proof of service shall specify the papers served, the person who was served and the date, time, address, or, in the event there is no address, place and manner of service, and set forth facts showing that the service was made by an authorized person and in an authorized manner.
  • Personal service.
    Whenever service is made pursuant to this article by delivery of the summons to an individual, proof of service shall also include, in addition to any other requirement, a description of the person to whom it was so delivered, including, but not limited to, sex, color of skin, hair color, approximate age, approximate weight and height, and other identifying features.
  • Other service.
    Where service is made pursuant to subdivision four of section three hundred eight of this chapter, proof of service shall also specify the dates, addresses and the times of attempted service pursuant to subdivisions one, two or three of such section.
  • Form.
    Proof of service shall be in the form of a certificate if the service is made by a sheriff or other authorized public officer, in the form of an affidavit if made by any other person, or in the form of a signed acknowledgement of receipt of a summons and complaint, or summons and notice or notice of petition as provided for in section 312-a of this article.
  • Admission of service.
    A writing admitting service by the person to be served is adequate proof of service.

Rule 306-a

Index number in an action commenced in supreme or county court.

  • Upon filing the summons and complaint or summons with notice in an action commenced in supreme or county court, an index number shall be assigned and the fee required by subdivision (a) of section eight thousand eighteen of this chapter shall be paid. Upon the filing of a summons and complaint against a person not already a party, as permitted under section one thousand seven or rule one thousand eleven of this chapter, the fee required by subdivision (a) of section eight thousand eighteen of this chapter shall be paid, but a separate index number shall not be assigned.
  • If a person other than the plaintiff or third-party plaintiff who served the summons or third-party summons obtains the index number and pays the fee therefor, the clerk shall issue an order directing the plaintiff or the third-party plaintiff to pay such person the amount of the fee paid. If such fee is not paid within thirty days of service of the order with notice of entry, the person who paid the fee, in addition to any other remedies available at law, may apply to the clerk for an order dismissing the action without prejudice.

Rule 306-b

Service of the summons and complaint, summons with notice, or of the third-party summons and complaint.

Service of the summons and complaint, summons with notice, or of the third-party summons and complaint shall be made within one hundred twenty days after their filing, provided that in an action or proceeding where the applicable statute of limitations is four months or less, service shall be made not later than fifteen days after the date on which the applicable statute of limitations expires. If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.

Rule 307. Personal service upon the state.

  • Personal service upon the state shall be made by delivering the summons to an assistant attorney-general at an office of the attorney-general or to the attorney-general within the state.
  • Personal service on a state officer sued solely in an official capacity or state agency, which shall be required to obtain personal jurisdiction over such an officer or agency, shall be made by (1) delivering the summons to such officer or to the chief executive officer of such agency or to a person designated by such chief executive officer to receive service, or (2) by mailing the summons by certified mail, return receipt requested, to such officer or to the chief executive officer of such agency, and by personal service upon the state in the manner provided by subdivision one of this section. Service by certified mail shall not be complete until the summons is received in a principal office of the agency and until personal service upon the state in the manner provided by subdivision one of this section is completed. For purposes of this subdivision, the term “principal office of the agency” shall mean the location at which the office of the chief executive officer of the agency is generally located. Service by certified mail shall not be effective unless the front of the envelope bears the legend “URGENT LEGAL MAIL” in capital letters. The chief executive officer of every such agency shall designate at least one person, in addition to himself or herself, to accept personal service on behalf of the agency. For purposes of this subdivision the term state agency shall be deemed to refer to any agency, board, bureau, commission, division, tribunal or other entity which constitutes the state for purposes of service under subdivision one of this section.

Rule 308. Personal service upon a natural person.

Personal service upon a natural person shall be made by any of the following methods:

  • by delivering the summons within the state to the person to be served; or
  • by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law; or
  • by delivering the summons within the state to the agent for service of the person to be served as designated under rule 318, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law;
  • where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later; service shall be complete ten days after such filing, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law;
  • in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section.
  • For purposes of this section, “actual place of business” shall include any location that the defendant, through regular solicitation or advertisement, has held out as its place of business.

Service rules for reference. I know this is really the hardest part especially if she is dodging you. You just got to stay after her here.
More about service here in NY..
https://www.nycourts.gov/courts/1jd/supctmanh/Self-Rep%20Forms/How%20to%20Serve.pdf