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  1. #1
    Stranger is offline Junior Member
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    do i need a proof of service with "demand for complaint"

    What is the name of your state? NY
    I got summons with note by Supreme court of New York. I send to plaintiff _demand for complaint" to the plaintiff by register mail with signature request.
    Question is, do I need some kind proof of service or some affidavit with this action in addition to proof from post office?
    Last edited by Stranger; 03-12-2006 at 05:51 PM.
  2. #2
    seniorjudge is offline Senior Member
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    Quote Originally Posted by Stranger
    What is the name of your state? NY
    I send "demand for complaint" to the plaintiff by register mail with signature request.
    Do I need some kind proof of service or some Affidavit with this action in addition to proof from post office?
    Thanks
    Does this have anything to do with any of your other threads you started?

    In any event, check the rules for civil procedure used in the court you are in and post back with results. (You gave us no info on which court you are in.)

    [url]http://forum.freeadvice.com/showthread.php?t=310032[/url]

    [url]http://forum.freeadvice.com/showthread.php?t=310344[/url]
    There are two rules for success:

    (1) Never tell everything you know.
  3. #3
    Stranger is offline Junior Member
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    Quote Originally Posted by seniorjudge
    Does this have anything to do with any of your other threads you started?...
    And knowing it, how it could help you to answer simple question for current thread?

    This site was advertised as free legal advice. I came here in hope to get some answer for simple questions. I_m only getting replies what have nothing to do with question what I_m asking about.
    Also I read Uniform Civil Rules For The Supreme Court And The County Court, but did not find the answer Im looking for, and this is why I asked it here.
    Last edited by Stranger; 03-12-2006 at 06:20 PM.
  4. #4
    seniorjudge is offline Senior Member
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    Quote Originally Posted by Stranger
    And knowing it, how it could help you to answer simple question for current thread?

    This site was advertised as free legal advice. I came here in hope to get some answer for simple questions. I_m only getting replies what have nothing to do with question what I_m asking about.
    Also I read Uniform Civil Rules For The Supreme Court And The County Court, but did not find the answer Im looking for, and this is why I asked it here.
    Google:

    new york rules civil procedure proof service
    There are two rules for success:

    (1) Never tell everything you know.
  5. #5
    Stranger is offline Junior Member
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    seniorjudge!

    Are you reading my thread or just posting for fun?
    Looks like you posting just to get as more useless post as possible.
    Last edited by Stranger; 03-12-2006 at 07:59 PM.
  6. #6
    seniorjudge is offline Senior Member
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    Quote Originally Posted by Stranger
    seniorjudge!

    Are you reading my thread or just posting for fun?
    Looks like you posting just to get as more useless post as possible.
    You were told in your other thread to get a lawyer (which you did not).

    Now, you can't even Google something to find your answer:

    Rule 306. Proof of service.

    1. 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.

    2. 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.

    3. 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.

    4. 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.

    5. Admission of service.
    A writing admitting service by the person to be served is adequate proof of service.


    [url]http://www.serve-now.com/resources/process-serving-laws/New-York/#2[/url]
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  7. #7
    You Are Guilty is offline Senior Member
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    In other words, yes, you need an affidavit of service.
    Quote Originally Posted by Tranquility
    Once you get to crazy land, it is only a guess on how to get out.
  8. #8
    Stranger is offline Junior Member
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    Quote Originally Posted by You Are Guilty
    In other words, yes, you need an affidavit of service.
    Finally I found the answer in "Legal Definition of Service Of Process"

    “After the defendant has been served, she/he usually files an answer or other response. She/he must serve this on the plaintiff, and usually can serve it by mail because the plaintiff, by initiating the lawsuit, has already appeared in the case and consented to the court's power to hear the case.”

    It mean no I don’t have to do a “proof of service” with my "Demand for complaint"
    “Proof of service” need only to trigger lawsuit with summons and complaint. After this first class mail is good.
  9. #9
    seniorjudge is offline Senior Member
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    Quote Originally Posted by Stranger
    Finally I found the answer in "Legal Definition of Service Of Process"

    “After the defendant has been served, she/he usually files an answer or other response. She/he must serve this on the plaintiff, and usually can serve it by mail because the plaintiff, by initiating the lawsuit, has already appeared in the case and consented to the court's power to hear the case.”

    It mean no I don’t have to do a “proof of service” with my "Demand for complaint"
    “Proof of service” need only to trigger lawsuit with summons and complaint. After this first class mail is good.
    You still must make a certificate or affidavit of service; otherwise, the court will have no way of knowing that you served papers on the other party.
    There are two rules for success:

    (1) Never tell everything you know.
  10. #10
    You Are Guilty is offline Senior Member
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    Quote Originally Posted by Stranger
    Finally I found the answer in "Legal Definition of Service Of Process"

    “After the defendant has been served, she/he usually files an answer or other response. She/he must serve this on the plaintiff, and usually can serve it by mail because the plaintiff, by initiating the lawsuit, has already appeared in the case and consented to the court's power to hear the case.”

    It mean no I don’t have to do a “proof of service” with my "Demand for complaint"
    “Proof of service” need only to trigger lawsuit with summons and complaint. After this first class mail is good.


    Look, you are free to believe whatever you want, but plain and simple, you need an affidavit of service. (You need an affidavit of service for every pleading and/or discovery demand/response you serve.) You do not have to file it with the court, nor do you technically even need to serve the other party with it in every situation, but you need one to show proof of service if/when that becomes a contested issue.

    If you fail to make one at the time and end up creating one "after the fact" and get caught, you can expect a wide variety of sanctions, not the least of which is striking your answer (which means the plaintiff automatically wins).


    PS: It's a summons with notice, not "note".
    Quote Originally Posted by Tranquility
    Once you get to crazy land, it is only a guess on how to get out.
  11. #11
    Stranger is offline Junior Member
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    Quote Originally Posted by You Are Guilty

    **************.If you fail to make one at the time and end up creating one "after the fact" and get caught, you can expect a wide variety of sanctions, not the least of which is striking your answer (which means the plaintiff automatically wins).
    PS: It's a summons with notice, not "note".
    I'm not arguing with you I'm just trying to find truth. I just paid to some $350 so called lawyer who said "No you don't need 'Proof of Service' 'Certificate of Service' will be good enough". This I though before paying him, but info here in this thread made me confuse and I had to pay him.
    When I say "Proof of Service" for me is official process with certain rules such "...person should be at least 18 years of age and not a party to this action..."
    In my case, since I'm "PRO SE" I believe I can just make "Certificate of Service" that mean I can send documents myself, without 3d party involved, notarized it with my oath and with proof of post office delivery filled it with court clerk. This is exactly what I did. And some people would call this document "Proof of Service" (Looks like because of game of the words here is misunderstanding)
    Am I and those lawyer whom I paid is right? Or I must to pay someone to pack and send mail for me and in addition I have to suit this lawyer who said that I don't have to do it?
    Last edited by Stranger; 03-16-2006 at 06:57 PM.
  12. #12
    You Are Guilty is offline Senior Member
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    Ah. Different question than the one you originally asked. To be safe, you should have someone else do the mailings and sign the "certificate" (an "Affidavit of Service", which means, written in it, you swear that what you've written is true under penalty of perjury, and it's notarized). Here's the standard language used which explains why it's a bad idea to do it yourself:
    I, (NAME), being duly sworn deposes and says:

    I am not a party to the action, am over 18 years of age and reside in (COUNTY), New York.

    On (DATE), I served the within (NAME OF DOCUMENT), by depositing a true copy thereof enclosed in a post-paid wrapper, in an official depository under the exclusive care and custody of the U.S. Postal Service with New York State, addressed to each of the following persons at the last known address set forth after each name.

    TO: (NAMES & ADDRESSES HERE)

    (YOUR SIGNATURE)

    Sworn to before me on this
    XXX day of March 2006

    (signed)
    Notary Public
    Now, having said that, the rules are sometimes relaxed for pro-se litigants. But since it's not guaranteed, it remains your best bet to ask a friend or neighbor to drop the stuff in the mailbox for you.


    PS: You don't have to file the Affidavits of Service with the court (unless it's for a complaint or counter-claim). Similarly, you don't need to attach them to the document you are serving. You can (they won't stop you), but it's unnecessary. Just keep them in your file.
    Quote Originally Posted by Tranquility
    Once you get to crazy land, it is only a guess on how to get out.
  13. #13
    Stranger is offline Junior Member
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    Quote Originally Posted by You Are Guilty
    ......Now, having said that, the rules are sometimes relaxed for pro-se litigants. But since it's not guaranteed, it remains your best bet to ask a friend or neighbor to drop the stuff in the mailbox for you.
    ....
    Since you so nice to talk to me, can you answer couple more question?
    Previous question is closed and I understood that, even if I can as “pro se” send my paper by my self, it still better to let some one to do it for me it could save a lot of headache, I got it, and thank you. From now on I’m going to follow this advice.

    I got today “Verified Complaint” by first class mail. I believe it meant that they accepted my lousy “Certificate of Service” and I shouldn’t worry of default by now, until I screw to answer this Complaint on time, is that right? Or I still better to let some one to send same “demand for complaint” for me?
    Second, is this normal practice to serve Complaint by Mail? I always tough that this is most important paper and should be served differently.

    Thanks a lot
  14. #14
    seniorjudge is offline Senior Member
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    Quote Originally Posted by Stranger
    Since you so nice to talk to me, can you answer couple more question?
    Previous question is closed and I understood that, even if I can as “pro se” send my paper by my self, it still better to let some one to do it for me it could save a lot of headache, I got it, and thank you. From now on I’m going to follow this advice.

    I got today “Verified Complaint” by first class mail. I believe it meant that they accepted my lousy “Certificate of Service” and I shouldn’t worry of default by now, until I screw to answer this Complaint on time, is that right? Or I still better to let some one to send same “demand for complaint” for me?
    Second, is this normal practice to serve Complaint by Mail? I always tough that this is most important paper and should be served differently.

    Thanks a lot
    You need to file your answer as soon as possible or you will be in default.


    Sometimes complaints come by mail; since you asked for it, they just sent it to you by mail. It doesn't have to be served differently since you are the one who asked for it to be sent to you. That's not really "service"...they are just responding to your request.
    There are two rules for success:

    (1) Never tell everything you know.
  15. #15
    You Are Guilty is offline Senior Member
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    You don't need to re-serve your demand via a friend at this point.

    With respect to the "bogus" aff of service that was filed in your case, to contest it, you'd need to file a motion or an order to show cause for a "traverse hearing" (google it). That's the proper way of contesting service, particularly if there's no more time left for them to reserve you under the statute of limitations. On the other hand, if there is a lot of time left under the SoL (or at least enough to re-serve you), then filing for a traverse hearing is basically nothing more than a good way to annoy the other side.

    You can also file a motion under CPLR 3211(a)(8) (you can read the whole thing here: [url]http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS)[/url]. The "danger" of doing it that way is that by moving, you will have made a legal "appearance" in the case, as opposed to a traverse hearing, at which you would physically appear, but not legally. Plus, as you can see in the statute, you only get one bite of the apple for 3211 motions, so if any of the other potential defenses listed in it may apply to your/your case, you don't want to just move on one ground and waive the others - you want to move on all of them.

    {edit} Filing an answer also creates a legal "appearance" so if you choose to file for a traverse, you must do it before serving your answer. If you aren't requesting a traverse, make sure you file your answer within 30 days of the alleged date it was served on you to avoid a potential default judgment.
    Quote Originally Posted by Tranquility
    Once you get to crazy land, it is only a guess on how to get out.

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