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New York State General Business Article 8

GBS – General Business

ARTICLE 8

PROCESS SERVERS

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Section 89-t. Definitions.

89-u. Process server records, penalties.

89-v. Enforcement by attorney general.

§ 89-t. Definitions

. For this article, 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.

§ 89-u. Process server records, penalties.

1. Each process server shall maintain a legible record of all service made by him as prescribed in this section.

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

a. the title of the action;

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.

3. If service is effected pursuant to subdivisions 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.

4. 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 subdivisions one, two or three of such section.

5. If the process server files an affidavit of service with the court, his record shall include the date of such filing.

6. Process servers shall retain each record required to be kept under this article for a period of two years from the date of service. Where a process server is employed as a process server by any person, a copy of such records shall also be maintained by such person at his principal office in this state for the same period.

§ 89-v. 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.