§ 74 — Service of summons and complaint on non-residents

§ 74. Service of summons and complaint on non-residents. 1. The use,\noperation, navigation or maintenance by a non-resident, or in his\nbusiness, of a vessel in waters of this state; or owned by a\nnon-resident and used, operated, navigated or maintained with his\npermission in waters of this state, shall be deemed equivalent to an\nappointment by such non-resident of the secretary of state to be his\ntrue and lawful attorney upon whom may be served the summons and\ncomplaint in any action against him, growing out of any accident or\ncollision in which such non-resident may be involved while using,\noperating, navigating or maintaining such vessel in waters of this\nstate, or in which such vessel may be involved while being used,\noperated, navigated or maintained in such waters in the business of the\nnon-resident, or with the permission, expressed or implied, of such\nnon-resident, and such use, operation, navigation or maintenance shall\nbe deemed a signification of his agreement that any such summons and\ncomplaint against him which is so served shall be of the same legal\nforce and validity as if served upon him personally within the state and\nthe territorial jurisdiction of the court from which the summons issues,\nand that such appointment of the secretary of state shall be irrevocable\nand binding upon his executor or administrator. Where such non-resident\nhas died prior to the commencement of an action brought pursuant to this\nsection, service of summons and complaint shall be made on the executor\nor administrator of such non-resident in the same manner and on the same\nnotice as is provided in the case of the non-resident himself. Where an\naction has been duly commenced under the provisions of this section\nagainst a non-resident who dies thereafter, the court must allow the\naction to be continued against his executor or administrator upon motion\nwith such notice as the court deems proper.\n 2. A summons and complaint in an action described in this section may\nissue in any court in the state having jurisdiction of the subject\nmatter and be served as hereinafter provided. Service of such summons\nand complaint shall be made by mailing a copy thereof to the secretary\nof state at his office in the city of Albany, or by personally\ndelivering a copy thereof to one of his regularly established offices,\nwith a fee of five dollars, and such service shall be sufficient service\nupon such non-resident provided that notice of such service and a copy\nof the summons and complaint are forthwith sent by or on behalf of the\nplaintiff to the defendant by registered mail with return receipt\nrequested. The plaintiff shall file with the clerk of the court in which\nthe action is pending, or with the judge or justice of such court in\ncase there be no clerk, an affidavit of compliance herewith, a copy of\nthe summons and complaint, and either a return receipt purporting to be\nsigned by the defendant or a person qualified to receive his registered\nmail, in accordance with the rules and customs of the post office\ndepartment; or, if acceptance was refused by the defendant or his agent,\nthe original envelope bearing a notation by the postal authorities that\nreceipt was refused, and an affidavit by or on behalf of the plaintiff\nthat notice of such mailing and refusal was forthwith sent to the\ndefendant by ordinary mail. Where the summons is mailed to a foreign\ncountry, other official proof of the delivery of the mail may be filed\nin case the post-office department is unable to obtain such a return\nreceipt. The foregoing papers shall be filed within thirty days after\nthe return receipt or other official proof of delivery or the original\nenvelope bearing a notation of refusal, as the case may be, is received\nby the plaintiff. Service of process shall be complete when such papers\nare filed. The return receipt or other official proof of delivery shall\nconstitute presumptive evidence that the summons mailed was received by\nthe defendant or a person qualified to receive his registered mail; and\nthe notation of refusal shall constitute presumptive evidence that the\nrefusal was by the defendant or his agent. Service of such summons also\nmay be made by mailing a copy thereof to the secretary of state at his\noffice in the city of Albany, or by personally delivering a copy thereof\nto one of his regularly established offices, with a fee of five dollars,\nand by delivering a duplicate copy thereof, with the complaint annexed\nthereto, to the defendant personally without the state by a resident or\ncitizen of the state of New York or a sheriff, under-sheriff,\ndeputy-sheriff or constable of the county or other political subdivision\nin which the personal service is made, or an officer authorized by the\nlaws of this state, to take acknowledgments of deeds to be recorded in\nthis state, or an attorney and/or counselor at law, solicitor, advocate\nor barrister duly qualified to practice in the state or country where\nsuch service is made, or by a United States marshal or deputy United\nStates marshal. Proof of personal service without the state shall be\nfiled with the clerk of the court in which the action is pending within\nthirty days after such service. Personal service without the state is\ncomplete when proof thereof is filed. The court in which the action is\npending may order such extension as may be necessary to afford the\ndefendant reasonable opportunity to defend the action.\n 3. Service of summons on residents who depart from state and on\nresidents' executors or administrators who are nonresidents or who\ndepart from state. The provisions of section seventy-four of this\nchapter shall also apply (a) to a resident who departs from the state\nsubsequent to the accident or collision and remains absent therefrom for\nthirty days continuously, whether such absence is intended to be\ntemporary or permanent, and to any executor or administrator of such\nresident, and (b) to an executor or administrator of a resident if such\nexecutor or administrator is a nonresident or if, being a resident, he\ndeparts from the state and remains absent therefrom for thirty days\ncontinuously, whether such absence is intended to be temporary or\npermanent.\n 4. As used in this section "vessel" means a vessel commonly known as a\n"houseboat" and every vessel or floating craft propelled in any manner,\nexcept a vessel having a valid marine document issued by the United\nStates or a foreign government.\n