April 24, 2018

Proceed with caution sign

It is essential that you review and confirm that service was effectuated on attorneys/parties upon the completion of your filing on NYSCEF.  Sometimes, not all parties will receive the papers via Notice of Electronic Filing or better known as the “NYSCEF receipt” and they must be served by other service methods. When this happens, the filing needs to be backed up with an Affidavit/Affirmation of Service.

Commencement papers must be served in hard copy pursuant to the CPLR (Civil Practice Law and Rule).  At this stage, the parties have not yet recorded their consent in a consensual e-filing action, nor have any parties recorded their representation in a mandatory action. In this instance, an Affidavit of Service should be filed. Service in a NYSCEF case for parties that have already been served with the commencement action is made through NYSCEF by a participating e–filer upon other participating e–filers who have already recorded their consent or noted their representation for a party. When a document is filed through NYSCEF, the transmission of the document automatically causes service to occur on the other participating attorneys/parties.  They will receive a Notice of Electronic Filing and in this instance, an Affidavit/Affirmation of Service is not needed.

So, what is the harm in including an Affidavit/Affirmation of Service even though it is not needed? You are beholden to the rules and the requirement of the service method that you choose and this effects the amount of notice given to your adversary. NYSCEF was never meant to replace service methods already in the CPLR.  Rather, it was meant as an additional option when requirements are met. Service by mail within New York State adds 5 days to the service requirement. Service outside of New York State by mail add 6 days to the service requirement. Whereas Service via NYSCEF is viewed as personal service and no extra time is added to the notice requirement. So, if you served a Notice of Motion with supporting documents via NYSCEF and included a standard Affidavit or Affirmation of Service attesting to service by mail and did not include the 5 or 6 extra days, then you have just short served your adversary. Therefore, either change the language on the Affidavit/Affirmation of Service to attest to service via NYSCEF or remove it altogether. Watch those service requirements!

Kristen Gutierrez is a Managing Clerk in New York City.  The information contained herein is not legal advice.   

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