N.Y. Navigation Law § 74: Service of summons and complaint on non-residents

§ 74. Service of summons and complaint on non-residents. 1. The use,

operation, navigation or maintenance by a non-resident, or in his

business, of a vessel in waters of this state; or owned by a

non-resident and used, operated, navigated or maintained with his

permission in waters of this state, shall be deemed equivalent to an

appointment by such non-resident of the secretary of state to be his

true and lawful attorney upon whom may be served the summons and

complaint in any action against him, growing out of any accident or

collision in which such non-resident may be involved while using,

operating, navigating or maintaining such vessel in waters of this

state, or in which such vessel may be involved while being used,

operated, navigated or maintained in such waters in the business of the

non-resident, or with the permission, expressed or implied, of such

non-resident, and such use, operation, navigation or maintenance shall

be deemed a signification of his agreement that any such summons and

complaint against him which is so served shall be of the same legal

force and validity as if served upon him personally within the state and

the territorial jurisdiction of the court from which the summons issues,

and that such appointment of the secretary of state shall be irrevocable

and binding upon his executor or administrator. Where such non-resident

has died prior to the commencement of an action brought pursuant to this

section, service of summons and complaint shall be made on the executor

or administrator of such non-resident in the same manner and on the same

notice as is provided in the case of the non-resident himself. Where an

action has been duly commenced under the provisions of this section

against a non-resident who dies thereafter, the court must allow the

action to be continued against his executor or administrator upon motion

with such notice as the court deems proper.

2. A summons and complaint in an action described in this section may

issue in any court in the state having jurisdiction of the subject

matter and be served as hereinafter provided. Service of such summons

and complaint shall be made by mailing a copy thereof to the secretary

of state at his office in the city of Albany, or by personally

delivering a copy thereof to one of his regularly established offices,

with a fee of five dollars, and such service shall be sufficient service

upon such non-resident provided that notice of such service and a copy

of the summons and complaint are forthwith sent by or on behalf of the

plaintiff to the defendant by registered mail with return receipt

requested. The plaintiff shall file with the clerk of the court in which

the action is pending, or with the judge or justice of such court in

case there be no clerk, an affidavit of compliance herewith, a copy of

the summons and complaint, and either a return receipt purporting to be

signed by the defendant or a person qualified to receive his registered

mail, in accordance with the rules and customs of the post office

department; or, if acceptance was refused by the defendant or his agent,

the original envelope bearing a notation by the postal authorities that

receipt was refused, and an affidavit by or on behalf of the plaintiff

that notice of such mailing and refusal was forthwith sent to the

defendant by ordinary mail. Where the summons is mailed to a foreign

country, other official proof of the delivery of the mail may be filed

in case the post-office department is unable to obtain such a return

receipt. The foregoing papers shall be filed within thirty days after

the return receipt or other official proof of delivery or the original

envelope bearing a notation of refusal, as the case may be, is received

by the plaintiff. Service of process shall be complete when such papers

are filed. The return receipt or other official proof of delivery shall

constitute presumptive evidence that the summons mailed was received by

the defendant or a person qualified to receive his registered mail; and

the notation of refusal shall constitute presumptive evidence that the

refusal was by the defendant or his agent. Service of such summons also

may be made by mailing a copy thereof to the secretary of state at his

office in the city of Albany, or by personally delivering a copy thereof

to one of his regularly established offices, with a fee of five dollars,

and by delivering a duplicate copy thereof, with the complaint annexed

thereto, to the defendant personally without the state by a resident or

citizen of the state of New York or a sheriff, under-sheriff,

deputy-sheriff or constable of the county or other political subdivision

in which the personal service is made, or an officer authorized by the

laws of this state, to take acknowledgments of deeds to be recorded in

this state, or an attorney and/or counselor at law, solicitor, advocate

or barrister duly qualified to practice in the state or country where

such service is made, or by a United States marshal or deputy United

States marshal. Proof of personal service without the state shall be

filed with the clerk of the court in which the action is pending within

thirty days after such service. Personal service without the state is

complete when proof thereof is filed. The court in which the action is

pending may order such extension as may be necessary to afford the

defendant reasonable opportunity to defend the action.

3. Service of summons on residents who depart from state and on

residents' executors or administrators who are nonresidents or who

depart from state. The provisions of section seventy-four of this

chapter shall also apply (a) to a resident who departs from the state

subsequent to the accident or collision and remains absent therefrom for

thirty days continuously, whether such absence is intended to be

temporary or permanent, and to any executor or administrator of such

resident, and (b) to an executor or administrator of a resident if such

executor or administrator is a nonresident or if, being a resident, he

departs from the state and remains absent therefrom for thirty days

continuously, whether such absence is intended to be temporary or

permanent.

4. As used in this section "vessel" means a vessel commonly known as a

"houseboat" and every vessel or floating craft propelled in any manner,

except a vessel having a valid marine document issued by the United

States or a foreign government.