Relates to process servers, relating to licensing and penalties.
Sponsor: Gibson / Co-sponsor(s): Cook
Law Section: General Business Law / Law: Amd S89-t, add S89-w, Gen Bus L; amd R3015, CPLR
Jan 9, 2013: referred to economic development
2013-2014 Regular Sessions
I N ASSEMBLY
January 9, 2013
Introduced by M. of A. GIBSON, COOK — read once and referred to the Committee on Economic Development
AN ACT to amend the general business law and the civil practice law and rules, in relation to process servers
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 89-t of the general business law, as added by chapter 397 of the laws of 1973 and as redesignated by chapter 336 of the laws of 1992, is amended to read as follows:
S 89-t. Definitions.
1. 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;
(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.
FOR THE PURPOSES OF THIS CHAPTER THE SERVICE OF FIVE OR MORE PROCESS IN ANY ONE YEAR SHALL BE DEEMED TO CONSTITUTE DOING BUSINESS AS A PROCESS SERVER.
2. “DEPARTMENT” SHALL MEAN DEPARTMENT OF STATE.
3. “SECRETARY” SHALL MEAN SECRETARY OF STATE.
S 2. Article 8 of the general business law is amended by adding a new
section 89-w to read as follows:
PROCESS SERVER, LICENSING, PENALTIES.
1. ISSUANCE, RENEWAL, SUSPENSION AND REVOCATION OF A LICENSE. ON OR AFTER OCTOBER FIRST, TWO THOUSAND THIRTEEN, NO PERSON SHALL ACT AS A PROCESS SERVER WITHOUT FIRST HAVING OBTAINED A LICENSE IN ACCORDANCE WITH THE PROVISIONS OF THIS ARTICLE, AND WITHOUT FIRST BEING IN COMPLIANCE WITH ALL OTHER APPLICABLE LAWS, RULES AND REGULATIONS.
EXPLANATION–Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
(VII) A DETAILED DESCRIPTION OF THE BUSINESS PRACTICES OR METHODS USED, OR INTENDED TO BE USED, BY THE APPLICANT TO CONFIRM THAT THE ACTIONS OF ITS EMPLOYEES ARE IN COMPLIANCE WITH APPLICABLE LAWS, IN PARTICULAR WITH REGARD TO EMPLOYEES CARRYING OUT THE NEW YORK REQUIREMENTS OF SERVICE OF PROCESS AS SET FORTH IN THE CIVIL PRACTICE LAW AND RULES;
(VIII) AN APPLICANT WHO IS A NON-RESIDENT OF THE STATE SHALL PROVIDE THE NAME AND ADDRESS OF A REGISTERED AGENT WITHIN THE STATE OR DESIGNATE THE SECRETARY AS HIS OR HER AGENT UPON WHOM PROCESS OR OTHER NOTIFICATION MAY BE SERVED.
4. IN DETERMINING WHETHER TO ISSUE OR RENEW A LICENSE, THE SECRETARY SHALL CONSIDER THE CHARACTER, COMPETENCY AND INTEGRITY OF THE APPLICANT. THE SECRETARY MAY REFUSE TO ISSUE OR RENEW A LICENSE TO ANY PERSON, FIRM OR CORPORATION WHOM HE OR SHE FINDS HAS: BEEN CONVICTED OF ANY CRIME DEFINED IN ARTICLE ONE HUNDRED FIFTY-FIVE OF THE PENAL LAW OR ARTICLE TWENTY-TWO-A OF THIS CHAPTER OR FAILED TO PAY ANY FINAL CIVIL JUDGMENT RELATING TO WORK AS A PROCESS SERVER, IF SUCH REFUSAL, IN THE JUDGMENT OF THE SECRETARY, BEST PROMOTES THE INTERESTS OF THE PEOPLE OF THIS STATE.
5. NOTICE IN WRITING IN THE MANNER AND FORM PRESCRIBED BY THE DEPARTMENT SHALL BE GIVEN TO THE DEPARTMENT AT ITS OFFICES IN ALBANY WITHIN TEN DAYS OF CHANGES OF NAME OR ADDRESS BY LICENSED PROCESS SERVER. THE FEE FOR FILING EACH CHANGE OF NAME OR ADDRESS NOTICE SHALL BE TEN DOLLARS.
6. THE FEES ESTABLISHED BY THIS SECTION SHALL NOT BE REFUNDABLE.
7. EACH PROCESS SERVER ENGAGED IN SERVING PROCESS SHALL COMMUNICATE HIS OR HER LICENSE NUMBER UPON THE REQUEST OF ANY INTERESTED PARTY. ANY ADVERTISEMENT, LETTERHEAD, RECEIPT OR OTHER PRINTED MATTER OF A LICENSEE MUST CONTAIN THE LICENSE NUMBER ASSIGNED TO THE LICENSEE BY THE DEPARTMENT. SUCH LICENSE NUMBER SHALL BE CLEARLY AND CONSPICUOUSLY DISPLAYED.
8. NO PERSON, FIRM OR CORPORATION SHALL:
9. LICENSES ISSUED TO PROCESS SERVERS SHALL NOT BE TRANSFERABLE OR ASSIGNABLE.
10. THE SECRETARY SHALL ISSUE EACH PROCESS SERVER A UNIQUE LICENSE NUMBER.
11. THE SECRETARY SHALL MAINTAIN AND PUBLISH A REGISTRY OF ALL LICENSED PROCESS SERVERS WHICH SHALL LIST AND IDENTIFY ALL LICENSED PROCESS SERVERS DOING BUSINESS IN THIS STATE. THE SECRETARY SHALL MAKE THE REGISTRY AVAILABLE ON ITS WEBSITE.
12. THE DEPARTMENT SHALL BEFORE DENYING AN APPLICATION FOR A LICENSE OR BEFORE REVOKING OR SUSPENDING ANY LICENSE, OR IMPOSING ANY FINE OR REPRIMAND, AND AT LEAST FIFTEEN DAYS PRIOR TO THE DATE SET FOR THE HEARING, AND UPON DUE NOTICE TO THE COMPLAINANT OR OBJECTOR, NOTIFY IN WRITING THE APPLICANT, OR THE HOLDER OF SUCH LICENSE, OF ANY CHARGE MADE AND SHALL AFFORD SUCH APPLICANT OR LICENSEE AN OPPORTUNITY TO BE HEARD IN PERSON OR BY COUNSEL IN REFERENCE THERETO. SUCH WRITTEN NOTICE MAY BE SERVED PERSONALLY TO THE APPLICANT OR LICENSEE, OR BY CERTIFIED MAIL TO THE LAST KNOWN BUSINESS ADDRESS OF SUCH APPLICANT OR LICENSEE.
13. THE HEARING ON SUCH CHARGES SHALL BE AT SUCH TIME AND PLACE AS THE DEPARTMENT SHALL PRESCRIBE AND SHALL BE CONDUCTED BY SUCH OFFICER OR PERSON IN THE DEPARTMENT AS THE SECRETARY MAY DESIGNATE, WHO SHALL HAVE THE POWER TO SUBPOENA AND BRING BEFORE THE OFFICER, OR PERSON SO DESIGNATED, ANY PERSON IN THIS STATE AND ADMINISTER AN OATH TO AND TAKE TESTIMONY OF ANY PERSON OR CAUSE HIS OR HER DEPOSITION TO BE TAKEN. A SUBPOENA ISSUED UNDER THIS SECTION SHALL BE REGULATED BY THE CIVIL PRACTICE LAW AND RULES. SUCH OFFICER OR PERSON IN THE DEPARTMENT DESIGNATED TO TAKE SUCH TESTIMONY SHALL NOT BE BOUND BY COMMON LAW OR STATUTORY RULES OF EVIDENCE OR BY TECHNICAL OR FORMAL RULES OF PROCEDURE.
14. IN THE EVENT THAT THE DEPARTMENT SHALL DENY THE APPLICATION FOR, OR REVOKE OR SUSPEND ANY SUCH LICENSE, OR IMPOSE ANY FINE OR REPRIMAND, ITS DETERMINATION SHALL BE IN WRITING AND OFFICIALLY SIGNED. THE ORIGINAL OF SUCH DETERMINATIONS, WHEN SO SIGNED, SHALL BE FILED IN THE OFFICE OF THE DEPARTMENT AND COPIES THEREOF SHALL BE MAILED TO THE APPLICANT OR LICENSEE AND TO THE COMPLAINANT WITHIN TWO DAYS AFTER SUCH FILING.
15. THE DEPARTMENT, ACTING BY THE OFFICE OR PERSON DESIGNATED TO CONDUCT THE HEARING PURSUANT TO SUBDIVISION THIRTEEN OF THIS SECTION OR BY SUCH OTHER OFFICER OR PERSON IN THE DEPARTMENT AS THE SECRETARY OF STATE MAY DESIGNATE, SHALL HAVE THE POWER TO SUSPEND THE LICENSE OF ANY LICENSEE WHO HAS BEEN CONVICTED IN THIS STATE OR ANY OTHER STATE OR TERRITORY OF A FELONY OR OF ANY MISDEMEANOR FOR A PERIOD NOT EXCEEDING THIRTY DAYS PENDING A HEARING AND A DETERMINATION OF CHARGES MADE AGAINST HIM OR HER. IF SUCH HEARING IS ADJOURNED AT THE REQUEST OF THE LICENSEE, OR BY REASON OF ANY ACT OR OMISSION BY HIM OR HER OR ON HIS OR HER BEHALF, SUCH SUSPENSION MAY BE CONTINUED FOR THE ADDITIONAL PERIOD OF SUCH ADJOURNMENT.
16. THE ACTION OF THE DEPARTMENT IN GRANTING OR REFUSING TO GRANT OR TO RENEW A LICENSE UNDER THIS ARTICLE OR IN REVOKING OR SUSPENDING OR REFUSING TO REVOKE OR SUSPEND SUCH A LICENSE OR IMPOSING ANY FINE OR REPRIMAND SHALL BE SUBJECT TO REVIEW BY A PROCEEDING INSTITUTED UNDER ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES AT THE INSTANCE OF THE APPLICANT FOR SUCH LICENSE, THE HOLDER OF A LICENSE SO REVOKED, SUSPENDED, FINED OR REPRIMANDED.
17. FOR THE PURPOSE OF THIS ARTICLE, LICENSEES MAY BE HELD RESPONSIBLE FOR STATEMENTS, REPRESENTATIONS, PROMISES OR ACTS OF THEIR EMPLOYEES OR THEIR AGENTS WITHIN THE SCOPE OF THEIR AUTHORITY; PROVIDED, HOWEVER, THAT LICENSEES SHALL NOT BE HELD RESPONSIBLE FOR STATEMENTS, REPRESENTATIONS, PROMISES OR ACTS WHICH ARE CONTRARY TO INSTRUCTIONS OR WHICH CONSTITUTE GROSS NEGLIGENCE OR INTENTIONAL TORTS UNLESS SPECIFICALLY AUTHORIZED BY THE LICENSEE.
(A) ANY PERSON, FIRM OR CORPORATION THAT OPERATES AS A PROCESS SERVER WITHOUT A LICENSE SHALL BE REQUIRED TO PAY A CIVIL PENALTY TO THE DEPARTMENT OF NOT MORE THAN FIVE HUNDRED DOLLARS PER ATTEMPT TO SERVE PROCESS IN VIOLATION OF THIS SECTION;
(B) IN ADDITION TO ANY OTHER PENALTIES, IF A PERSON IS FOUND TO HAVE COMMITTED REPEATED, MULTIPLE OR PERSISTENT VIOLATIONS OF ANY PROVISION OF THIS ARTICLE, SUCH PERSON MAY BE RESPONSIBLE FOR THE COST OF THE DEPARTMENT’S INVESTIGATION.
S 3. Subdivision (e) of rule 3015 of the civil practice law and rules, as amended by chapter 458 of the laws of 2012, is amended to read as follows:
(e) License to do business.
Where the plaintiff’s cause of action against a consumer arises from the plaintiff’s conduct of a business which is required by state or local law to be licensed by the department of consumer affairs of the city of New York, the Suffolk county department of consumer affairs, the Westchester county department of consumer affairs/weight-measures, the county of Rockland, the county of Putnam [or], the Nassau county department of consumer affairs OR THE DEPARTMENT OF STATE PURSUANT TO SECTION EIGHTY-NINE-W OF THE GENERAL BUSINESS LAW, the complaint shall allege, as part of the cause of action, that plaintiff was duly licensed at the time of services rendered and shall contain the name and number, if any, of such license and the governmental agency which issued such license; provided, however, that where the plaintiff does not have a license at the commencement of the action the plaintiff may, subject to the provisions of rule thirty hundred twenty-five of this article, amend the complaint with the name and number of an after-acquired license or the previously held license, as the case may be, and the name of the governmental agency which issued such license or move for leave to amend the complaint in accordance with such provisions. The failure of the plaintiff to comply with this subdivision will permit the defendant to move for dismissal pursuant to paragraph seven of subdivision (a) of rule thirty-two hundred eleven of this chapter.
S 4. This act shall take effect on the one hundred eightieth day after it shall have become a law; provided, however, that effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date are authorized and directed to be made and completed on or before such effective date.