Ironically, as electronic filing and service become more and more common in the courts within New York, a recent amendment to the Civil Practice Law and Rules (CPLR) addressed the situation of when hard copies of papers are mailed from outside of New York State. The amendment to CPLR 2103 now permits papers to be served by mail from any state within the United States. Additionally, the extra time that a party gets to respond to any papers has been increased by one day if the papers are mailed from outside of New York State.
Effective January 1, 2016, the definition of “mailing” contained in CPLR 2103(f)(1) was changed to include “the deposit of a paper enclosed in a first class postpaid wrapper, addressed to the address designated by a person for that purpose . . . in a post office or official depository under the exclusive care and custody of the United States Postal Service within the United States.” Previously, service by mail was only complete and proper if the post office or official depository was located within New York State. Any papers, served by a party or attorney outside of New York State through the mail, were technically defective and subject to challenge. Out-of-state practitioners were required to use overnight delivery providers if they were serving papers to addressees in New York State. They no longer have to worry about such deficiency or the more stringent overnight requirements.
The recent amendment takes into consideration that mail coming from outside of New York State may take a little longer to reach its destination within the state. Accordingly, CPLR 2103(b)(2), which allows for service by mail upon an attorney representing a party, was amended to provide that “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 if the mailing is made within the state and six days if the mailing is made from outside the state but within the geographic boundaries of the United States.” Therefore, the so-called “mailbox rule,” relating to service upon an attorney or a party, now gives the recipient one extra day if served by overnight delivery (CPLR 2103(b)(6)), five extra days if served by mail from within New York State and six extra days if the mail service was completed from outside of New York, but within the United States. CPLR 2103(b)(2). It is important to note that no extra time is permitted for service by electronic means, such as e-filing, e-mail or fax transmission, where such service is permitted.
These new rules will affect appellate practitioners as well as litigants in lower courts. So, before you calculate your own “due date” after receiving papers by mail, be sure to carefully look at the postmark to determine when and from where they were served.
Tagged: Appellate Practice, Litigation