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Case Dismissed for Process Server's Failure to Produce Records at Traverse Hearing

In a recent decision titled U.S. Bank Nat. Assoc. v. Murillo, the Supreme Court, Nassau County, dismissed a foreclosure action for lack of jurisdiction because, at a traverse hearing, the process server not only produced no records, but had no records to produce.

The case was located in Nassau County, a county which does not require its process servers to be licensed. At the traverse, plaintiff's counsel argued that, because Nassau does not require its process servers to be licensed, the court cannot hold the process server to the standards of a licensed process server.

The court rejected this argument, citing to New York General Business Law (GBL) Article 8, which governs all process servers who meet the statutory definition.[1] The definition, noted the court, does not distinguish between process servers who are licensed and those who are not. "Thus, even if Nassau County does not presently require a process server to be licensed, all process servers are subject to the State's record keeping mandate and may be penalized for non-compliance." The statute, the court continued, sets forth what and how records must be maintained, and provides for enforcement by the attorney general and the imposition of civil penalties.

Adopting the reasoning of First Commercial Bank of Memphis v Ndiaye, 189 Misc 2d 523 [Sup. Ct. Queens County 2001], the court held that the failure of a process server to produce records maintained in accordance with GBL § 89-u should result in dismissal. In Ndiaye, the court found that the process server did not maintain his records in accordance with statutory requirements, and therefore his testimony at a traverse hearing could not be credited. The court also noted with approval the observation in the Ndiaye decision that the purpose of process-serving requirements is to combat the continuing problem of process-serving abuse known as "sewer service," and to ensure the reliability of records presented to the court in support of jurisdiction.

In the case at bar, said the court, where the process server maintained and presented no records whatsoever, the case for dismissal was even stronger than in Ndiaye. Accordingly, "this Court, recognizing the sound policy of preventing questionable service practices, finds that the process server, Mr. Cardi, was required to keep records in accordance with GBL § 89-u, and that his failure to produce such records at the traverse hearing, as required by 22 NYCRR § 208.29[2], is unlawful and constitutes grounds for dismissal for lack of jurisdiction."

In dicta, the court noted that in the past, process server credibility may have been presumed, and the duty to keep good records was not given much heed by the courts or litigants. However, "the need, particularly in this economic environment and under these telling circumstances, for valid and reliable proof of service, mandates the rejection of "trust me," and the adoption of "show me.""

[1] Under GBL Article 8, a process server is defined as 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 in five or more actions or proceedings in the twelve month period immediately preceding the service in question. GBL § 89-t

[2] 22 NYCRR § 208.29 Traverse hearings. Whenever the court has scheduled a hearing to determine whether process was served validly and timely upon a party, and where a process server will testify as to the service, the process sever shall be required to bring to the hearing all records in the possession of the process server relating to the matter at issue. Where the process server is licensed, he or she shall also bring the license to the court.