Differences between Personal Service Vs. Personal In-Hand Service
Many attorneys and paralegals often confuse “personal service” and “personal in-hand service.” Below are the Differences between Personal Service Vs. Personal In-Hand Service.
New York Consolidated Laws, Civil Practice Law, and Rules - CVP § 308. Personal service upon a natural person Personal service upon a natural person shall be made by any of the following methods:
1. by delivering the summons within the state to the person to be served;
or
2. 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
3. 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 of section two hundred thirty-two of the domestic relations law
4. 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
5. in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two, and four of this section.
6. 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. “Personal service” is considered good service for most Summonses, Subpoenas, Notice of Petitions and Petitions.
The grey area is whether or not legal papers that request “personal service” can be affixed to the door or not. Almost all attorneys and paralegals will insist that “personal service” does NOT include affixing papers to the door once due diligence is complete, but they are incorrect. If an attorney insists on leaving legal documents with an actual person, the process serving company should do whatever the attorney is requesting, but educate them that, according to CPLR 308, “personal service” does include nail and mail servings.
Now to make things even more confusing, oftentimes, law firms confuse “personal service” with “personal in-hand service.”. PERSONAL IN HAND SERVICE MEANS THE DOCUMENTS HAVE TO BE LEFT WITH THE SPECIFIC DEFENDANT WE ARE SERVING, AND CANNOT BE LEFT WITH ANYONE ELSE. In NYS, divorce papers, Citations for probating a Wil, and some Order to Show Causes (OTSC) have to be served in this manner. The grey area is when an OTSC says “personal service” under service instructions, and most law firms confuse that with “personal in hand service” and don’t understand that good service is leaving the OTSC with anyone of suitable age and discretion at the defendant’s residence. Often times a judge will write “personal in hand service” in his own handwriting on the OTSC. When that happens, the OTSC can only be left with the specific defendant.