Klein v. Metropolitan Transit Authority

Background

The order concerns service of the lawsuit on defendant Kirk Thomas. A prior order had directed the Clerk of Court to issue summonses and provide the U.S. Marshals Service with the paperwork needed to serve all defendants, including Thomas. The Marshals then attempted personal service on Thomas twice at a residential address provided by counsel for the Metropolitan Transit Authority. The Marshals documented those attempts in a Process Receipt and Return form.

The opinion states that the Metropolitan Transit Authority’s counsel had confirmed the last known address for Thomas in the Authority’s records. Because the prior attempts were unsuccessful, the court found that the plaintiff had shown sufficient due diligence, meaning sufficient effort to locate and serve Thomas, to use New York Civil Practice Law and Rules § 308(4).

Ruling

Judge James L. Cott directed the Clerk to complete a U.S. Marshals Service Process Receipt and Return form for Thomas using the previously provided address. The Clerk was also directed to issue a new summons and provide the Marshals with the necessary paperwork. The Marshals were ordered to serve Thomas by “nail and mail” service under New York Civil Practice Law and Rules § 308(4). The Clerk was further directed to mail a copy of the order to the plaintiff and note the mailing on the docket.

This was an order about the method of service. It did not decide the merits of the plaintiff’s claims.