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This entry was published on 2014-09-22
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SECTION 74
Service of summons and complaint on non-residents
Navigation (NAV) CHAPTER 37, ARTICLE 4, PART 4
§ 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.