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CALAWYER (& anyone else) -- HELP!!! Need information TOD


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The judge signed off on the Order to Show to Vacate and the return date is on the 12/17. The PROBLEM is that the Judge signed the papers on Monday, but I only got to pick them up today because I was home taking care of my sick son, and today is the last day to serve them. I tried to do it in person, but I just found out that the firm moved from Manhattan to New Rochelle (which is not exactly far, but not within the bounds of public transportation here and I don't have a car). Also, they've changed their name. Do you think if I sent the Order, Affidavit in support, and Answer via fax and overnight courier that the court would accept this as a reasonable attempt to effect service since the firm not only moved, but changed their name (which has made it a pain in the butt to locate them)? I'm assuming that they might try to get the Order dismissed for improper service, but I'm hoping the fact that they changed their name and moved will give me some room with the court on this.

Any thoughts?

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The rules for service are pretty clear. I'd call the court and find out if what you suggest would work, otherwise, its time to hire a courier to go to New Rochelle NOW :( You might also find out if there's any way to get an extension of the time to serve them.

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I'm in NY - specifically in NYC.

LADYnRED - I know the rules of service are very specific, but I'm wondering how these things apply if you've attempted personal service at the address on the court papers, but the law firm is no longer there, not even in the same city. I was only able to find the law firm since I have access to the State Bar directory, but even then, it was a trial since the name has changed from, let's say, PAIN & BUTT to the new name BUTT & CRACK.

How would a regular person with no knowledge or resources to track these people down present this in court? Would they walk in and say "not there in anymore?"

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You'l be fine.

Rule 2103. Service of papers

(a) Who can serve. Except where otherwise prescribed by law or order of court, papers may be served by any person not a party of the age of eighteen years or over.

(B) Upon an attorney. Except where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action shall be served upon the party's attorney. Where the same attorney appears for two or more parties, only one copy need be served upon the attorney. Such service upon an attorney shall be made:

1. by delivering the paper to the attorney personally; or

2. by mailing the paper to the attorney at the address designated by that attorney for that purpose or, if none is designated, at that attorney's last known address; service by mail shall be complete upon mailing; where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period; or

3. if the attorney's office is open, by leaving the paper with a person in charge, or if no person is in charge, by leaving it in a conspicuous place; or if the attorney's office is not open, by depositing the paper, enclosed in a sealed wrapper directed to the attorney, in the attorney's office letter drop or box; or

4. by leaving it at the attorney's residence within the state with a person of suitable age and discretion. Service upon an attorney shall not be made at the attorney's residence unless service at the attorney's office cannot be made; or

5. by transmitting the paper to the attorney by facsimile transmission, provided that a facsimile telephone number is designated by the attorney for that purpose. Service by facsimile transmission shall be complete upon the receipt by the sender of a signal from the equipment of the attorney served indicating that the transmission was received, and the mailing of a copy of the paper to that attorney. The designation of a facsimile telephone number in the address block subscribed on a paper served or filed in the course of an action or proceeding shall constitute consent to service by facsimile transmission in accordance with this subdivision. An attorney may change or rescind a facsimile telephone number by serving a notice on the other parties; or

6. by dispatching the paper to the attorney by overnight delivery service at the address designated by the attorney for that purpose or, if none is designated, at the attorney's last known address. Service by overnight delivery service shall be complete upon deposit of the paper enclosed in a properly addressed wrapper into the custody of the overnight delivery service for overnight delivery, prior to the latest time designated by the overnight delivery service for overnight delivery. Where a period of time prescribed by law is measured from the service of a paper and service is by overnight delivery, one business day shall be added to the prescribed period. "Overnight delivery service" means any delivery service which regularly accepts items for overnight delivery to any address in the state; or

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6. by dispatching the paper to the attorney by overnight delivery service at the address designated by the attorney for that purpose or, if none is designated, at the attorney's last known address. Service by overnight delivery service shall be complete upon deposit of the paper enclosed in a properly addressed wrapper into the custody of the overnight delivery service for overnight delivery, prior to the latest time designated by the overnight delivery service for overnight delivery. Where a period of time prescribed by law is measured from the service of a paper and service is by overnight delivery, one business day shall be added to the prescribed period. "Overnight delivery service" means any delivery service which regularly accepts items for overnight delivery to any address in the state;

If I'm reading this correctly, I'm assuming that even though I'm to serve this document "on or before 12/4/03," once I deposit it with the post office (via express mail), it is considered served and that one day is added to the effective service period (i.e., on or before 12/4 becomes on or before 12/5).

Also, this Rule 2013 - is this CPLR?

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If you have any question at all, you can always fax the papers to a local process server and have them personally deliver them the same day. I do it all the time and it usually costs about $50. If you go that route, make sure you follow up with them and get a proof of service.

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