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New York's Ban On Sunday Service of Process Only Applies If Service Interrupts Person's Sabbath

By Howard M. Friedman

New York's General Business Law, Sec. 11, prohibits service of process in civil cases on Sundays. However in Carbon Capital Management, LLC v American Express Co., (Sup. Ct. NY Nassau, July 29, 2010), a New York trial court upheld the validity of service on Sunday on the concierge in defendant's apartment builiding. The court said that the section is designed to avoid interrupting a person on that individual's day of rest. The court continued:

Where the process server delivers the summons on Sunday to a person ... in defendant's household, it may be assumed that their Sabbath day has been interrupted to the same extent as that of the defendant. However, where the person ... is the concierge in a multiple dwelling, it is clear that the concierge's Sabbath is not being interrupted.... If defendant did not want to be disturbed with legal matters on Sunday, he had simply to instruct his concierge to hold any summonses or other documents which might be delivered.

... Were this court to construe § 11 as prohibiting service of process on Sunday, regardless of whether the repose or religious liberty of defendant or anyone in his household was effected, the statute might well run afoul of the establishment clause. Finding a service void under such circumstances could be seen as declaring Sunday to be the official day of rest, regardless of whether it was so observed by the defendant. To avoid "constitutional doubts," the court must reject this construction of the statute...

Full post as published by Religion Clause on August 19, 2010 (boomark / email).