New York City Debt Collection Defense Attorney

NYC regulation of process servers upheld despite constitutional challenges

Process servers will remain obligated to comply with Administrative City Code § 20, a New York City law that governs the licensing and behavioral conduct of process servers.

This decision[1] appears in today's New York Law Journal and reminds us that this law permits private citizens to sue for damages.

Federal Judge, Denise Cote, threw out the purported class-action lawsuit launched by a group of New York process servers looking for a declaration that the code authorizes only criminal sanctions while foreclosing administrative and civil enforcement actions. The New York City Department of Consumer Affairs ("DCA")[2] has been vigorously enforcing this code through stiff penalties and license suspension. Process servers are taking notice that perjured affidavits of service and missed traverse hearings will no longer be overlooked or tolerated.

Their complaint mounted constitutional challenges for alleged discriminatory treatment arising from a lack of due process, unequal application of the code, excessive fines, and vagueness of the code. The theories tested in this case are the type you'd confront on a bar exam.

Specifically, the servers argued that denying license renewal, imposing multiple fines for the same act, and directing secrecy relating to investigatory subpoenas, were among the City's unconstitutional acts. Apparently, the process servers dislike being held accountable.

Judge Cote rejected as "groundless" the servers' claim that the code limits enforcement to criminal proceedings. The City Council was conferred latitude to "impose different criminal penalties for violations pertaining to specific classes of licensees," which here involves process-serving licensees. The code otherwise explicitly grants the DCA – and private citizens – the right to enforce, and seek damages under the code.

I personally read the complaint. It's not badly written. It just makes legally invalid arguments. For example, the claims against all 38 individual defendants were dismissed on the grounds of absolute immunity since those individuals were admittedly performing adjudicatory functions. Further, the complaint brazenly asserted a RICO (racketeering enterprise) claim against the city and the individuals for their alleged "scheme to defraud" and willful acts of defamation. Those claims were summarily dismissed without the need to even examine evidence.

First, because the DCA is granted discretion to deny process server license renewals, the process servers lack a protected, vested property interest, thereby undermining any due process claim.

Second, since the servers fail to allege a "fundamental right" or a "suspect classification" at issue, the equal protection theory fails because the City met its "rational basis" for implementing and enforcing the code as is. The city produced its evidence demonstrating the pervasive, ongoing problem of "sewer service."[3]

The servers' RICO claim was also dismissed with prejudice. Judge Cote relied on the prevailing rule that a "municipality is not capable of forming the requisite intent to support the underlying offense giving rise to a Civil Rico action."

This office has worked with the Department of Consumers Affairs to notify its staff attorneys of the apparent misconduct of process servers involved in our cases. The department has been taking swift action to punish those bad apples that commit perjury or otherwise fail to comply with the code.

[1] New York State Professional Process Server's Association v. City of New York, 14 civ-1266.

[2] The DCA staff attorneys serve as prosecutors and administrative law judges adjudicate alleged violations. Process servers can appeal the Tribunal's and DCA's determinations to New York State court in a Rule 78 Proceeding (See CPLR § 7801, et seq.).

[3] Sewer service refers to when process servers willfully don't deliver the papers but instead toss them in the sewer causing the defendant to default. The process servers then lie in sworn affidavits that allege proper service.