Serving a New York summons: deliver-and-mail, nail-and-mail, and the ten days that follow

New York is unusual in that service is often not complete on the day it happens. Two of the five methods under CPLR 308 require a delivery or an affixing, then a mailing, then a filing — and service is complete ten days after that filing, not before.

Every deadline in the case runs from that completion date. Getting it wrong shifts everything.

The five methods

CPLR 308 opens: "Personal service upon a natural person shall be made by any of the following methods."

1 — In-hand delivery.

by delivering the summons within the state to the person to be served

Simple, and the only method where service is complete on the spot.

2 — Deliver and mail.

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

3 — On a designated agent under CPLR 318.

4 — Nail and mail, and note the precondition:

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

5 — Court-ordered service.

in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section.

The three clocks in methods 2 and 4

This is where cases are lost, and it is worth setting out plainly.

Three consequences.

The order does not matter, the gap does. You may mail first or deliver first, so long as they fall within twenty days of each other.

The twenty days for filing runs from whichever came second. Not from the delivery, not from the mailing — the later of the two.

And nothing is complete until ten days after filing. A defendant served by delivery-and-mail on 1 March, with proof filed on 10 March, is not served until 20 March. The answer period starts then.

The envelope requirement

Both methods 2 and 4 permit a mailing to the actual place of business, and both attach the same conditions: the envelope must bear the legend "personal and confidential", and must not indicate on the outside — by return address or otherwise — that it is from an attorney or concerns an action against the person.

A firm envelope with a law-office return address does not comply. This is a common and entirely avoidable defect.

Note also the alternative: mailing to the last known residence carries no envelope requirement. Where the residence is known, that route is simpler.

"Due diligence" is a real precondition

Method 4 is available only "where service under paragraphs one and two cannot be made with due diligence." That is not a formality to recite in an affidavit — it is a condition on the availability of the method, and a nail-and-mail service made without genuine attempts at the first two methods is open to challenge.

What counts as due diligence is developed in case law this page does not cover. What the rule makes clear is that the requirement exists and that it is the process server's attempts, not the plaintiff's convenience, that satisfy it.

What "actual place of business" includes

CPLR 308(6) settles a question that used to be litigated:

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.

So a defendant who advertises an address has, for service purposes, an actual place of business there — whether or not anyone works at it.

The 120 days to serve

CPLR 306-b:

Service of the summons and complaint, summons with notice, or petition with a notice of petition or order to show cause shall be made within one hundred twenty days after the commencement of the action or proceeding, provided that in an action or proceeding, except a proceeding commenced under the election law, 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.

Two routes to an extension, and they are genuinely different: good cause looks at the plaintiff's diligence; the interest of justice is broader and takes in the whole circumstances, including whether the limitations period has run. Ask for both.

And then the answer clock

Once service is complete, the response period depends on the method — 20 days where the summons was delivered in hand within the state, 30 days otherwise. That distinction is covered in this site's guide on responding to a New York summons.

CPLR 3012(a) also sets the general rule for later pleadings: "Service of an answer or reply shall be made within twenty days after service of the pleading to which it responds."

How New York compares

A short checklist

1. Identify the method before you calculate anything. Only in-hand delivery completes service on the day it happens.
2. For deliver-and-mail or nail-and-mail, track three dates: delivery or affixing, mailing, and filing of proof.
3. Keep the delivery and the mailing within twenty days of each other.
4. File proof within twenty days of the later of the two, and remember service is complete only ten days after that filing.
5. Check the envelope if you mailed to a place of business — "personal and confidential", no attorney return address, nothing on the outside about the action.
6. Mail to the last known residence instead where you can; it carries no envelope conditions.
7. Do not reach for nail-and-mail first. It is available only where methods 1 and 2 cannot be accomplished with due diligence.
8. Calendar 120 days from commencement, and if you need more, move on both good cause and the interest of justice.

Where these rules live

• CPLR 304 — Method of commencing action or special proceeding.
• CPLR 305 — Summons; supplemental summons, amendment.
• CPLR 306 — Proof of service.
• CPLR 306-b — Service of the summons and complaint
• CPLR 308 — Personal service upon a natural person.
• CPLR 311 — Personal service upon a corporation or governmental subdivision.
• CPLR 312-a — Personal service by mail.
• CPLR 3012 — Service of pleadings and demand for complaint.

This page explains what the statute says. It isn't legal advice, and what constitutes due diligence under CPLR 308(4) is developed in case law this site doesn't cover.