A process server must always comply with the service of process rules as contained in section 308 of the CPLR (Civil Practice Law and Rules). Generally, a process server will serve a homeowner as a named defendant in a foreclosure summons and complaint by way of three means: 1. In hand delivery (the preferred choice), 2. substituted service on a person of suitable age and discretion (a person residing with you) or 3. nail and mail (the least preferred choice of the three). There are other less common methods of service which I will not discuss for purposes of simplicity. Each of the three methods of service mentioned require the process server to file an affidavit of service with the county clerk's office. Nail and mail service generally means that the process server tried to serve you or someone of suitable age and discretion at the property where your reside, but was unable. The standard generally requires that if the process server cannot effectuate in hand service or substituted service after three attempts, usually on three separate days and at various and reasonable times of day and/or evenings, then the process server can serve you utilizing the nail and mail method of service. This essentially means that if the process server made three reasonable attempts at serving you, but was unsuccessful then s/he can tape the foreclosure summons and complaint to your front door or leave it somewhere conspicuous near the door and within 20 days s/he must mail an additional copy of the foreclosure summons and complaint to your residence. The envelope containing the foreclosure summons and complaint must not indicate it is from an attorney's office and only indicate "personal and confidential" on it. The process server must then file the affidavit of service within another 20 days from the date of mailing. In your case, it appears that the process server may have chose the nail and mail approach, but I can't be sure until the affidavit of service is reviewed. If the affidavit of service indicates that the summons and complaint were served personally on you, via in hand delivery or via substituted service on someone residing with you, then it would appear that the service may be what is commonly referred to as "sewer service". If this is the case then you would be able to contest the service. An experienced New York foreclosure attorney can review your service and provide guidance on the best way to proceed. Call my office, and I will be happy to provide you with a free consultation. Best regards, Arnold M. Bottalico, Esq.
Arnold M. Bottalico is an experienced Long Island, NY foreclosure attorney with over 25 years of experience, and he welcomes your questions and comments.