In New York, when you start a lawsuit, you are required to serve and deliver the lawsuit papers to the people you have sued. The law requires that the lawsuit papers (often a summons & complaint) be delivered to those people or companies in a very specific fashion. If you have not delivered those papers properly, the defense will raise what is known as an affirmative defense when they answer and reply to the lawsuit allegations.

That defense will claim that you and the court, do not have jurisdiction over the person or company you are trying to sue. Basically, it means that the court will be unable to control any of the proposed defendants that you are trying to bring into your lawsuit.

That is why most lawyers rely on someone known as a “process server” in order to deliver the lawsuit papers. A process server is someone who has a specific knowledge of the exact manner and methods that the lawsuit papers must be delivered in order to prevent this type of claim being raised.

If you have plenty of time within which to bring a lawsuit, and your statute of limitations has not expired, then this issue can be fixed quickly by simply redelivering the necessary papers correctly.

A problem arises if the time to bring your lawsuit has expired. If your attempted delivery of the papers was initially timely, but now your time has expired and you want to redeliver those papers, you will then have a legal battle on your hands before your lawsuit has gone anywhere.

That is why how the lawsuit papers are delivered is extremely important.

In New York, to start a lawsuit you must purchase an identifying number from the court, known as an index number. You must then put that number on the summons and complaint. The summons and complaint must then be delivered to the people you are suing. Then, the person who actually delivers those papers must prepare an affidavit and submit that to the court. This is known as an 'affidavit of service'.

That affidavit tells the court that this delivery person swears that they have delivered these documents to the people you are suing. It lists the date, time and location and the person to whom these papers were delivered.

When the defense claims that they were not served with these papers properly, your attorney will provide the defense lawyer with a copy of this affidavit confirming that their client was properly served. That is often sufficient enough to get them to withdraw this claim.
Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer