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Appellate Court protects individuals from being served in a lawsuit on Saturday Sabbath

When someone files a lawsuit, he/she must serve papers on the defendants to establish the Court’s personal jurisdiction over them. There are laws governing how and when serving papers can occur in order to be valid. Among the rules that apply are those dealing with serving papers on the Sabbath. Importantly, a recent New York Appellate Court decision extended protection against Saturday service to situations where service didn’t involve personally handing the defendant papers.

Service of process can be done in a variety of ways, including personal service on the defendant; leaving the papers with a person of suitable age and discretion; or, where service by other methods are unsuccessful, by “nail and mail.” Nail and mail service refers to affixing the papers to a person’s residence or place of business and also mailing it to the person’s address.

Under General Business Law § 11, papers cannot be served on Sundays because of the same being recognized as a day “set apart for rest and religious uses.” GBL § 13 provides similar protections against service for those who observe Saturday as the Sabbath. This section also charges a misdemeanor against someone who “maliciously procures” service of process “upon a person who keeps Saturday as holy time, and does not labor on that day.” Courts have also held that service made in violation of GBL § 13 is void and does not establish personal jurisdiction.

In the recent decision of JP Morgan Chase Bank NA v. Lilker, the New York Appellate Division Second Department addressed a novel issue of first impression: Do the restrictions of GBL § 13 apply to the act of affixing papers to a residence as the first step in nail and mail service? In other words, are plaintiffs prohibited from nailing the papers to a house or place of business on the Sabbath or does the law only apply to serving papers in person?

The Court held that the prohibition does apply to nail and mail service and sent the case back to the trial court to determine whether “malice” existed. In order for the service to be considered void and the person to be charged with a misdemeanor, the party or attorney who caused service to be completed must have had actual knowledge that the defendant observed the Sabbath on Saturday. The court also noted that a principal-agent relationship applies in this case so knowledge of the plaintiff or his/her attorney is imputed to the process server. In addition, the knowledge of the plaintiff could arguably be attributed to his/her attorney.

In practical terms, this means that if you are commencing litigation and you are aware that the defendant observes the Sabbath on Saturdays, you must let counsel know or risk service being defective and void (and finding yourself guilty of a misdemeanor).

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