ServerLinks.com
Click to Follow

New York State General Business Article 8-a

GBS – General Business

ARTICLE 8-a

PROCESS SERVERS AND PROCESS SERVING AGENCIES IN CITIES

HAVING A POPULATION OF ONE MILLION OR MORE

Print

Section 89-bb. Definitions.

89-cc. Process server records.

89-dd. Process serving agency records.

89-ee. Responsibility of process serving agency and process servers.

89-ff. Affidavits of service.

89-gg. Availability of records.

89-hh. Enforcement by attorney general.

89-ii. Preservation of private remedies.

89-jj. Preemption.

89-kk. Severability.

89-ll. Applicability.

§ 89-bb. Definitions. For the purposes of this article:

1. A “process server” is a person, other than an attorney or a party to an action acting on his own behalf, who: (a) derives income from the service of papers in an action; or (b) has effected service of process in five or more actions or proceedings in the twelve month period immediately preceding the service in question. A person who serves interlocutory papers upon an attorney or who serves papers on behalf of a federal, state or local governmental agency in the course of his employment by such agency shall not be deemed a process server within the meaning of this article by virtue of such service.

2. A “process serving agency” is any person, firm, partnership, association or corporation, other than an attorney or a law firm located in this state, who, as owner, manager or contractor, maintains an office, bureau or agency for the purpose of assigning or distributing process to individual process servers for actual service.

§ 89-cc. Process server records. 1. Each process server shall maintain a legible record of all service made by him as prescribed in this section. Such records shall be kept in chronological order in a bound, paginated volume. Corrections in records shall be made only by drawing a straight line through the inaccurate entry and clearly printing the accurate information directly above the inaccurate entry. All other methods of correction, including but not limited to erasing, opaquing, obliterating or redacting, are prohibited.

2. The record to be maintained shall include the following information, where applicable:

(a) the title of the action or a reasonable abbreviation thereof;

(b) the name of the person served, if known;

(c) the date and approximate time service was effected;

(d) the address where service was effected;

(e) the nature of the papers served;

(f) the court in which the action has been commenced;

(g) the index number of the action, if known;

(h) if service is effectuated pursuant to subdivision four of section three hundred eight of the civil practice law and rules or subdivision one of section seven hundred thirty-five of the real property actions and proceedings law, a description of the color of the door to which the summons is affixed;

(i) the process serving agency from whom the process served was received, if any;

(j) type of service effected whether personal, substituted or conspicuous;

(k) if service is effected pursuant to subdivision one, two or three

of section three hundred eight of the civil practice law and rules, the record shall also include the description of the person served, including, but not limited to sex, color of skin, hair color, approximate age, height and weight and other identifying features;

(l) if service is effected pursuant to subdivision four of section three hundred eight of the civil practice law and rules, the record shall also include the dates, addresses and time of attempted service pursuant to subdivision one, two or three of such section;

(m) if the process server files an affidavit of service with the court, his record shall include the date of such filing.

89-dd. Process serving agency records. 1. Each process serving agency shall be required to keep complete and accurate records with respect to each process server to whom it distributes, assigns or delivers process to be served. Corrections in records shall be made only by drawing a straight line through the inaccurate entry and clearly printing the accurate information directly above the inaccurate entry. All other methods of correction, including but not limited to, erasing, opaquing, obliterating, or redacting, are prohibited.

2. Such records shall include, where applicable:

(a) The name of the process server to whom process is distributed, assigned or delivered to be served;

(b) The titles or a reasonable abbreviation thereof and index numbers of each case if filed in court by the agency;

(c) The date that such papers were assigned for service, and the date that service was effected;

(d) The person from whom such papers were received for service;

(e) The date of filing of papers with the court if filed by the agency;

(f) The type of service effected whether personal, substituted or conspicuous.

§ 89-ee. Responsibility of process serving agency and process servers.

1. It shall be unlawful for a process server to fail to comply with all legal requirements for the service of process.

2. A process serving agency shall be legally responsible for the acts of each process server to whom it has distributed, assigned or delivered process for service if it could reasonably have known that the process server was acting improperly.

3. It shall be unlawful for a process serving agency or a process server to fail to comply with all laws and regulations respecting preparation, notarization and filing of affidavits of service of process and other documents.

§ 89-ff. Affidavits of service. It shall be unlawful for a process server to fail to set forth on any affidavit of service or process signed by him his license or registration number if such process server is required to be licensed or registered pursuant to any state or local law and the name and address of any process serving agency from whom he obtained the process for service if any.

§ 89-gg. Availability of records. All records required to be maintained by this article shall be retained by a process server or process serving agency for a minimum of three years and shall be available for inspection by the attorney general. The attorney general shall afford a process server or process serving agency at least five days prior written notice of its desire to make an inspection of records and shall specify the records to be inspected.

89-hh. Enforcement by attorney general. In addition to the other remedies provided, whenever there shall be a violation of this article, application may be made by the attorney general in the name of the people of the state of New York to a court or justice having jurisdiction by a special proceeding to issue an injunction, and upon notice to the defendant of not less than five days, to enjoin and restrain the continuance of such violations; and if it shall appear to the satisfaction of the court or justice that the defendant has, in fact, violated this article, an injunction may be issued by such court or justice, enjoining and restraining any further violation, without requiring proof that any person has, in fact, been injured or damaged thereby. In any such proceeding, the court may make allowances to the attorney general as provided in paragraph six of subdivision (a) of section eighty-three hundred three of the civil practice law and rules. Whenever the court shall determine that a violation of this article has occurred, the court may impose a civil penalty of not more than one thousand dollars for each violation. Provided, however, a process server or agency may not be held liable for penalty in any action brought under this section for violation of this article, if the process server or agency shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error, notwithstanding the maintenance of procedures reasonably adopted to avoid any such error. Examples of a bona fide error include, but are not limited to, clerical calculation, computer malfunction and programming and printing errors. In connection with any such proposed application, the attorney general is authorized to take proof and make a determination of the relevant facts and to issue subpoenas in accordance with the civil practice law and rules.

§ 89-ii. Preservation of private remedies. Nothing in this article shall be construed to nullify or impair any right or rights which an individual may have against a process server or process serving agency at common law, by statute or otherwise

. § 89-jj. Preemption. This article does not annul, alter, affect or exempt any person or business entity subject to the provisions of this article from complying with any local law, ordinance or regulation with respect to process servers or process serving agencies except to the extent that those laws are inconsistent with any provision of this article, and then only to the extent of the inconsistency. For purposes of this section, a local law, ordinance or regulation is not inconsistent with this article if the protection such law or regulation affords a consumer is greater than the protection provided by this article.

§ 89-kk. Severability. If any provision of this article or if any application thereof to any person or circumstance is held invalid, the remainder of this article and the application of the provision to other persons and circumstances shall not be affected thereby.

§ 89-ll. Applicability. This article shall apply only in cities having a population of one million or more.