May 17, 2012
Christopher H. Palmer
Danielle M. Nunziato
In June, 2011, the Commissioner of the New York City Department of Consumer Affairs (the “Department”), pursuant to authority granted by Section 20-104(b) of Chapter 1, Title 20 of the Administrative Code of the City of New York (the “Code”), promulgated and adopted rules and amendments to existing rules to carry out the purpose of Chapter 2, Title 20 of the Code regarding records maintained by licensed process servers in the City of New York. The adopted rules and amendments to existing rules took effect in July, 2011. According to the Department’s website, effective as of November 12, 2011, licensed process servers are required to carry and operate an electronic device that records the Global Positioning System (“GPS”) location while serving process.
Purpose of New Section 20-410 of the Code
At hearings in June, 2011, evidence presented to a committee of the New York City Council focused on the growing concern over “sewer service”, an illegal practice in which process servers falsely claim to serve summonses and other process on parties to legal proceedings. This false service is particularly prevalent in consumer debt collection cases and as such, consumers are not afforded the opportunity to defend themselves against creditors’ claims that may be incorrect. Ultimately, those consumers “falsely served” with process may be subjected to legal proceedings to collect debts that are not legally justifiable.
With this new rule requiring that process servers carry a GPS device to record the location and time of service of process or attempted service, the Department provides a modern tool to detect and deter “sewer service” while strengthening the accountability of process servers and creates a way for process servers accused of “sewer service” to provide independent corroboration of his or her location at the time of the disputed service.
The Commissioner’s Authority
Section 20-104(a) of the Code confers on the Commissioner the jurisdiction and control over all licenses issued under Chapter 2, Title 20 and under all other laws conferring such powers upon him. Chapter 2, Title 20 of the Code grants the Commissioner the power to: (1) set forth any rules necessary to carry out his powers and duties; and (2) require those licensed pursuant to the requirements of the Code to keep such records that are determined by the Commissioner to be necessary and useful to carrying out the purpose of Chapter Two.
The New Rules and Amendments
Prior to the June, 2011 amendments, Section 2-233b of Subchapter W, Chapter 2, Title 6 of the Rules of the City of New York (the “Rules”) mandated that all licensed process servers comply with all rules regarding the tracking of service of process with a GPS device as shall be promulgated by the Commissioner.
As amended, Section 2-233b of the Rules implements new Section 20-410 of the Code. Section 20-410 requires licensed process servers, at all times during the commission of his or her licensed activities, to carry and operate “at the time process is served or attempted an electronic device that uses a [GPS], wi-fi device or other such technology as the Commissioner by rule shall prescribe to electronically establish and record the time, date, and location of service or attempted service.” The process server or the agency she works for must maintain all records created by such electronic device in an electronic database for seven (7) years from the date such record is created.
Additionally, Section 2-233b of the Rules was amended to prescribe the type of device that the process server must carry (2-233b(a)(1)); the information that must be found in every electronic record (2-233b(a)(2)); the way in which data must be stored and retrieved (2-233b(a)(4)); all information that must be included on a spreadsheet at the Department’s request (2-233b(a)(4)(vii)); and the reporting requirements under the new rules (2-233b(c)). The text of the amendment is found below.
If you have any questions regarding the rules and amendments affecting process servers in the City of New York, please contact Danielle Nunziato at (516) 296-9198 or via e-mail at firstname.lastname@example.org.
Text of the Legislation: 6 RCNY § 2-233b: Electronic Record of Service (As amended, June, 2011)
(a) General Requirements. A process server licensed pursuant to this subchapter must comply with the requirement of section 20-410 of the Code to carry at all times during the commission of his or her licensed activities, and operate at the time process is served or attempted, a device to establish electronically and record the time, date, and location of service or attempted service as follows:
(i) The process server must obtain a mobile device, such as a telephone or personal digital assistant, that utilizes the software necessary to make an electronic record of the location where, and the time and date when, the record is made as determined by Global Positioning System (“GPS”) technology or Assisted Global Positioning System (“A GPS”) technology, and labels the record with the network date and time maintained by the mobile device, the DCA license number of the process server, the DCA license number of the process serving agency that has distributed the process for service, the name of the plaintiff or petitioner, the name of the defendant or respondent, the docket number (if any), the name of the person to whom process is delivered and a unique file identifier of the process being served.
(ii) The mobile device must be equipped with the software necessary to make an electronic record of the location where and time and date when the record is made, as determined by triangulated cell tower signals, in the event that at the time of the effected or attempted service of process a GPS signal is not available.
(iii) The mobile device software must automatically add that location, time and date information to the electronic record as soon as a GPS or cellular signal reaches the device if neither a GPS nor a cellular signal is present at the time the process server causes the electronic record to be made.
(2) Operation of Equipment.
(i) On every occasion that a process server attempts or effects service of process, the process server must ensure that the mobile device makes an electronic record of the GPS location, time and date of the attempted or effected service immediately after attempting or effecting service. In the event that no GPS signal is available at the time of attempted or effected service of process, the location, time and date will be determined by triangulated cell tower signals.
(ii) Each electronic record must be labeled with:
a) the GPS or cellular network date and military time maintained by the mobile device;
b) the DCA license number of the process server;
c) the DCA license number of the process serving agency that distributed the process for service;
d) the name of the plaintiff or petitioner;
e) the name of the defendant or respondent;
f) the docket number, if any;
g) the name of the person to whom process is delivered; and
h) a unique file identifier of the process being served.
(3) Contract for Services. The process server must enter into a contract with an independent third party (“the Contractor”) pursuant to which the Contractor will provide services and perform functions described in paragraph (4) of this subdivision that enable the process server to meet the data storage and retrieval requirements set forth in such paragraph, provided, however, that if the process server performs process serving activities distributed to him or her by a licensed process serving agency, the process server may utilize the device and facilities for the electronic record of service that the process serving agency obtains under a contract with a Contractor.
(4) Data Storage and Retrieval. The electronic record must be automatically transmitted electronically from the mobile device to the Contractor as soon as a GPS or cellular signal is available and location, date and time are entered into the electronic record. The Contractor must store the electronic record according to the following terms:
(i) the original digital file must be maintained by the Contractor unaltered for a period of not less than seven years;
(ii) neither the process server nor the process serving agency will be permitted to alter the original data, but may obtain copies of the original data file;
(iii) the Contractor must maintain the records in a manner that will permit retrieval by the DCA license number of the process server, the DCA license number of the process serving agency that has distributed the process for service, the name of the plaintiff or petitioner, the name of the defendant or respondent, the docket number (if any), the name of the person to whom process is delivered and a unique file identifier of the process being served;
(iv) the Contractor must maintain the records in a manner that will ensure that their integrity is adequate for admissibility in a judicial proceeding under the rules of evidence applicable in the state of New York;
(v) the Contractor must produce upon request by the Department, and to any other party according to an appropriate order or subpoena, a copy of the electronic records, or any reasonably described part involved, certified to be true and accurate;
(vi) the Contractor must provide to the Department upon request a street map in hard copy format and access to an interactive electronic street map that display the locations where the digital records were recorded with a date and time provided by GPS or cellular date and time;
(vii) the Contractor must provide to the Department upon request, and to any other party according to an appropriate order or subpoena, such software as may be necessary to display the electronic records in an MS Excel spreadsheet, 2003 version or later, with the following fields and in the following data formats:
a) Plaintiff or petitioner, which must be specified by the last name of the first plaintiff, or, if not a natural person, the name of the entity, except that the field may contain the name of every plaintiff or petitioner in the case, provided that the entire record is searchable by a wildcard search of the name of any plaintiff or petitioner;
b) Defendant or respondent, which must be specified by the last name of the first defendant, or, if not a natural person, the name of the entity, except that the field may contain the name of every defendant or respondent in the case, provided that the entire record is searchable by a wildcard search of the name of any defendant or respondent;
c) the full docket number, which must be entered with all information necessary to identify the case, such as XXXXXX/XX, unless the case is a Civil Local matter, in which case, it will include the prefix of CV, CC, LT, MI, NC, RE, SC, or TS;
d) the date that service was effected or attempted according to the device, which must be entered as MM/DD/YYYY;
e) the time that service was effected or attempted according to the device, which must be entered in military time;
f) the date that service was effected or attempted according to GPS or cellular signals, which must be entered as MM/DD/YYYY;
g) the time that service was effected or attempted according to GPS or cellular signals, which must be entered as military time;
h) the address where service was effected or attempted, which must consist of four fields in the following order: building number, street name, city; and zip code, which must be five digits. All address information must be CASS (Coding Accuracy Support System) processed to insure its accuracy with software graded to be CASS Certified by the National Customer Support Center of the United States Postal Service;
i) the name of the intended recipient of the process, which must be entered in two data fields such that the first data field is the last name of the intended recipient, or, if not a natural person, the name of the entity, and the second data field is the first name of the intended recipient if a natural person.
j) the name of the person to whom process was delivered, which must be entered in two data fields such that the first data field is the last name of the person, and the second data field is the first name of the person.
(b) Provision of Equipment and Services by Process Serving Agency. A process serving agency licensed according to this subchapter may provide to licensed process servers the device and services required by subparagraph (a) according to a contract with an independent third party. For purposes of this Rule, a third party will not be considered independent if any officer or owner of ten percent or more of the shares of the licensed process serving agency has any interest, direct or indirect, in the third party.
(c) Report to Department.
(1) Within sixty days after the effective date of this Rule a licensed process server must submit to the Department in a form approved the Commissioner a certification that he or she has secured the contract required by this Rule and identifying the name, address and account number of the Contractor(s) providing the required device and services. After sixty days after the effective date of this Rule, no process server license will be issued or renewed unless the applicant submits such a certificate.
(2) A licensed process server must submit to the Department an amended certification within two days of entering into a contract with a different Contractor.
(3) In place of submitting the certificates required by the preceding provisions, the licensed process server may submit a certification in a form approved by the Commissioner affirmed by an owner or officer of a licensed process serving agency that the device and services the process server is required to obtain are provided by the agency under a contract with an independent third party.
(d) Compliance with all laws. Compliance with the requirements of this Rule does not relieve a licensed process server of the obligation to make or maintain records required by any other federal, state, or local law, rule or regulation.