Int 1258: Audits Required of New York Process Servers

• December 12, 2018
• by Gail Kagan
• Articles

Editor's note: This article was written by Gail Kagan, a process server in New York, regarding recent legislative proposals. The opinions expressed here belong to Ms. Kagan.

The Bill

A local law to amend the administrative code of the city of New York, in relation to mandating audits of the records of process servers.

This bill would require that the commissioner of consumer affairs to annually audit the records of at least 20% of licensed process servers who have served process for a housing court procedure. It also requires that litigants are informed when a process server or process server agency has failed its audit.

Current Regulation

As a business owner and process server, I deplore the instances of improper service. I am aware of the serious concern over the issue of housing and re-gentrification displacing people in the city. I have reacted sympathetically with most New Yorkers to articles such as the NY Times article “UNSHELTERED” citing the problems within this housing system.

However, NYC already has the most regulated laws regarding service of process in the nation.

Unscrupulous landlords can find similarly unscrupulous people to serve process but, in the NY times article referenced above, four of the six people or companies mentioned are no longer licensed by the city of New York. This shows that the system in place is working. The housing industry may have a problem, but the issue is not your average process server making $10-17 a paper.

The Responsibilities of a Process Server

We have no power to prevent a person from getting evicted. We have no way to judge whether he or she has paid his or her rent. We have no knowledge if he/she is being evicted fairly. That’s not in our purview. And, although we do our best to go at times we believe people are home, we cannot control whether the person is home when we arrive. Our job is to give the notice; the court’s job is to decide the merits of the case.

The process server is an integral part of the checks and balances system of the constitution of the United States, and an important part of due process and the 5th and 6th amendment. We are the impartial party whose role is to serve notice. It is a thankless and often a dangerous job as you never know who is behind the door.

No matter what people think about us as messengers of bad news and no matter the bad publicity this job gets, the process servers’ job is to serve notice that someone is in litigation. That is all. We do that by following the NY State Rules Governing Process and the NYC Codes. In landlord tenant cases, this mandates a process server attempt personal service and post the service after due diligence. We also make additional notice by first class and certified mailings which complete the service. In addition to this, we must conform to the time limits put upon us by the laws directing service. Since we have no control over when we receive the documents, we are often operating under strict time constraints.

By following these laws, we are not giving any advantage to the Petitioner/Landlord, and in the same instance we cannot and are not able to favor the Defendant/Tenant.

The city administrative code regarding process servers strictly mandates the way service in the city is conducted* including costly licensing and bonding, testing servers for their knowledge of the rules of process, GPS and electronically documenting each service and attempt of service, and stringent record keeping requirements. Failure to fully comply can result in serious consequences to the process server.

Current Consequences

The department of consumer affairs can and does audit these records at their discretion. If a process server fails to maintain these records to the satisfaction of the DCA, he/she is fined $500 per instance. In these audits, most of the errors that are found revolve around the transcribed records kept in the hand-written log book which is a duplication of the electronic record, such as a missing entry in a field, missing zip codes, or an inappropriate abbreviation. They seldom have anything to do with the actual service of process. The fines for these errors can add up to thousands of dollars for the process server. If the DCA feels a process server is not trustworthy, he is fined and his license is revoked.

The result of this strict regulation and the new technology required to conform to the same has cut down instances of bad service. But the fines and the tedious duplication of records have also caused fewer people to want to continue as servers. This becomes an issue as you consider adding burdens to the process server such as mandatory auditing.

Since 2011, when code 20-chapter 2 sub chapter 23 of the city’s code was revised, the number of process servers has dropped by approximately 70% to a fluctuating 600 to 700 licensed process servers. This loss of manpower is a detriment to due process.

Process Servers in Court

In instances of questionable service the law already has a remedy: Traverse Hearing. These hearings were instituted to prove that service was done properly. The savvy litigator often uses this tactic to change the dynamics of a case, not because the service is really in question. In traverse hearings involving landlord/tenant cases, few cases ever go to court. Most are scheduled, stall, and end up dismissed. Statistics show that few traverse hearings wind up overturning a case (and fewer judgment in cases are vacated). This leads to the conclusion that most process servers do their job responsibly.

That same NY times article sympathetically notes that in landlord tenant court, the tenant often has no attorney and the landlord is almost always represented. The same is true for process servers at a traverse hearing. The server stands alone. He is not the person who did not pay the rent and he will not profit from the landlord winning. He has no one to represent him. Attorneys represent the landlord or sometimes the tenant, but never the process server. He only has his word and his records. So it behooves the process server to follow the rules and to keep those records as accurately as possible.

In a city that has millions of cases litigated every year, including landlords* that send Notices to tenants every month, 700 process servers are just not enough.

The Consequences of Int 1258

This change in civil code 20-406-3 bill Int 1258 to the Administrative code will cause even more process servers to leave the industry. Putting more pressure on the server is not going to make service of process better and is guaranteed to make it worse.

The question I have for the city council is what is the endgame? After legislating the process servers out of business, who is going to take our place? What is the fallback position? The marshals, the sheriffs, and the police won’t cover our job. So by passing this amendment the city council is recreating a system where unregulated process will be rampant in the city.

Process servers are hardworking, responsible people who feel they are providing a necessary service to the people of the City of New York. Passage of this amendment will force more people out of an industry that has already paid the price for the unscrupulous behavior of a few.

References:

*Civil code title 20: chapter 2 subchapter 23 mandates among other things that every process server serving process in NYC be licensed and bonded. Each service or attempt of service is to be electronically recorded on a handheld device, including the time, date and geo-locate each service or attempt of service, the address of the service, and a description of the person served, the plaintiff and defendant in the case, the docket number if any further the process server must contract with a 3rd party independent contractor. Each of the electronic record is uploaded to the 3rd parties server and stored for seven years. The process server has no way to access or alter those records. The records must be available to be presented if requested by a court or regulatory body. The server also keeps a paginated hand-written log of each service and attempt of service citing all the same details as the electronic record transcribing the electronic record. The code also requires that Process Servers Agencies routinely audit the record of the process server for consistency by monitoring the log book and the electronically stored record. *A report of the NYC Housing guideline shows NYC in 2017 had 3,469,240 housing units