New York City’s Department of Consumer Affairs has served more than 300 subpoenas on independent process servers seeking their global positioning system records, leading some process servers to complain that they’re being unfairly targeted.
Katyusca Abreu, a spokeswoman for the department, confirmed that the subpoenas were issued in December as part of an ongoing investigation into process service in New York. The subpoenas had a return date of Jan. 13. She did not say what the city’s next step would be in the investigation, only that the subpoenas were issued “to ensure they’re keeping legally mandated GPS records to prevent sewer service and make sure that process servers are serving papers when and where they say they are.”
“Sewer service” refers to failure to serve papers.
Lawyers in New York usually hire process servers through agencies, which in turn use independent contractors.
The consumer affairs department has been investigating the process server industry in 2008, concluding after public hearings that the largely self-regulated industry was not ensuring adequate service in many cases. It found that so-called sewer service was common, and that process servers were not keeping adequate records.
In response to those findings, the New York City Council passed Local Law 7 in 2010, requiring process servers to keep detailed records of where they serve papers and to use GPS tracking to confirm they appeared where they said they appeared. The GPS records are held by third-party companies.
Since that law was passed, the number of registered process servers in New York has been cut in half, from over 2,000 to just over 1,000.
Larry Yellon, president of the New York State Professional Process Servers Association, said that the new regulations are being enforced overzealously, effectively driving process servers out of business for technicalities.
For example, he said, a process server might be hit with heavy fines for omitting a ZIP code, or getting an address slightly wrong.
“Some [violations] might have been more serious than others, but some were frivolous, administrative, nothing drastic,” he said. “They have repetitive fines. If a zip code is missing a dozen times, they fine them a dozen times.”
Furthermore, Yellon said, the agency has used the threat of fines or even license suspension to get process servers to agree to consent orders that impose higher record-keeping standards than the city law.
The Process Servers’ Association sued the city council to block Local Law 7, and that suit ended with a settlement that scaled back some of the record-keeping requirements in the original law. Yellon said he sees the consent orders as an attempt to get around the terms of that settlement.
“What they’re doing, basically, is what I call legislation by coercion,” he said. “They’re doing this to slowly and eventually get every process server in under rules that were not agreed to in court.”
According to the department’s website, it has entered into about 200 settlements with individual process servers and about 100 settlements with process server agencies. By comparison, it has entered into close to 150 settlements with employment agencies, the next largest group of settlements. Other industries, including debt collection and used car sales, have yielded less than a dozen settlements each.
The next license renewal for process servers will arrive at the end of this month, and Yellon said he believes the number of licensed servers will continue to drop.
“I think with the renewal period coming up, many process servers are not going to renew,” he said. “I’m assuming it’s going to be down to about 700 or 800 tops.”
Scott Mollen, a real estate attorney at Herrick, Feinstein, said that attorneys are generally supportive of the new rules, even if they mean higher prices for process service.
“From the perspective of a law firm, the last thing that an attorney wants to do is to have to explain to a client that they have to commence a lawsuit again because prior service was defective,” Mollen said. “Law firms and their clients have a very strong interest in making sure that service is properly executed.”
“We understand that there are many excellent process server companies that feel that the better approach is to punish those who engage in what’s referred to as sewer service,” Mollen added. “However, the city council has determined that the problem is on such a large scale that greater protection of the public was warranted. We’ve always tried to use the process servers who have strong reputations, and we understand that the price of that is that the cost may be somewhat higher. However, the alternative involves a risk that you may incur far greater loss in wasted legal fees.”
@|Brendan Pierson can be reached at email@example.com. Twitter: BPierson_NYLJ