Comments on DCWP’s Proposal to Amend and Add Rules Relating to Process Servers

SUMMARY

The Consumer Affairs Committee and the Civil Court Committee submitted comments on the Department of Consumer and Worker Protection’s proposed amendments to rules governing New York City process servers. The committees largely support the amendments, with two exceptions. They oppose the proposed addition to section 2-233b(a)(2)(i) – which would add a five-minute grace period and a rebuttable presumption of noncompliance for electronic records made more than five minutes after the time of attempted or effected service – to the existing rule that process servers make an electronic record of the GPS location, time and date “immediately after” attempting or effecting service. “Absent a rationale or supporting data, the proposed five-minute grace period is arbitrary [and] [t]herefore, we recommend that the Department delete this provision and maintain the rule’s requirement that the electronic record be made immediately after attempting or effecting service.” The committees also oppose proposed amendments to section 2-233b(a)(2)(iii)(e) and (f), which would require an electronic record of the date/time of service “according to the [mobile] device,” since the rule requires, at 2-233b(a)(2)(i), that the process server make an electronic record of the location, date and time by GPS or by triangulated cell signals. Thus, keeping an electronic record of the date/time “according to the device” is superfluous.

REPORT

By Electronic Submission to Rulecomments@dcwp.nyc.gov
New York City Department of Consumer and Worker Protection
42 Broadway #5
New York, NY 10004 

Re: DCWP Proposal to Amend and Add Rules Relating to Process Servers

To Whom It May Concern:

The Consumer Affairs Committee and the Civil Court Committee (the “committees”) of the New York City Bar Association (“City Bar”) submit the following comments concerning the Department of Consumer and Worker Protection’s (the “Department”) proposed amendments to rules relating to process servers.

INTRODUCTION

The City Bar’s Consumer Affairs Committee examines consumer protection issues at the national, state and local levels. Its members present on topics affecting consumers, prepare position papers, and develop programming. The committee hosts monthly meetings, which include presentations from thought leaders in consumer financial services, advertising, and data privacy, among other topics affecting consumers. The Civil Court Committee addresses issues pertaining to the New York City Civil Court. Civil Court filings include consumer debt collection cases, small claims cases, and no-fault insurance cases. The committees are often called upon to provide analyses of local, state, and federal law and regulation.

COMMENTS

A. Proposed Amendments to Section 233 of chapter 2 of Title 6 of the Rules of the City of New York

The committees believe the Department’s proposed amendments will enhance the accuracy and integrity of process serving.

B. Proposed Amendments to Section 233b(a)(2)(i) of chapter 2 of Title 6 of the Rules of the City of New York

The committees support the Department clarifying that a process server is not in compliance with this provision if its electronic record was made before the time of attempted or effective service. However, the committees are concerned by the Department’s proposed addition to section 233b(a)(2)(i) which provides:

There shall be a rebuttable presumption that the process server was not in compliance with this provision if its electronic record is made more than five minutes after the time of attempted or effected service.

Existing section 233b(a)(2) requires that:

the process server must ensure that the mobile device make an electronic record of the GPS location, time and date of the attempted or effected service immediately after attempting or effecting service.
(Emphasis added)

The committees believe that the proposed five-minute grace period and a rebuttable presumption of noncompliance contradicts and undermines the rule’s mandate that the record be made immediately after attempted or effective service. The Department has not provided any rationale or supporting data suggesting that the five-minute grace period bears any relationship to the accuracy or integrity of the process service. Absent a rationale or supporting data, the proposed five-minute grace period is arbitrary. Therefore, we recommend that the Department delete this provision and maintain the rule’s requirement that the electronic record be made immediately after attempting or effecting service.

C. Proposed Amendments to Section 2-233b(a)(2)(iii) of chapter 2 of Title 6 of the Rules of the City of New York

Similarly, proposed amendments to section 2-233b(a)(2)(iii)(e) and (f) are not supported by any rationale or data. Section 2-233b(a)(2)(i), “Operation of Equipment,” states: “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. If 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.” The rule does not provide that the date and time “according to the device” may be substituted for the date and time provided by GPS or triangulated cell signal data. No rationale is given for including the device date and time as well as the date and time provided by GPS or cell tower triangulation. Absent a rationale or supporting data, proposed sections 2-233b(a)(2)(iii)(e) and (f) are arbitrary and should be omitted.[1]

We believe the remaining proposed amendments will enhance the accuracy and integrity of process service.

D. Proposed Amendments to Section 2-234 of chapter 2 of Title 6 of the Rules of the City of New York

We have no comment.

E. Proposed Amendments to Section 2-235 of chapter 2 of Title 6 of the Rules of the City of New York

 The committees believe that the proposed subsection (a) amendments will enhance the accuracy and integrity of service of process upon non-natural persons. Therefore, we support the Department’s proposed amendment.

Likewise, we support the proposed amendments of subsections (b) and (c).

F. Proposed Amendments to Section 2-235a, 236, and 240 of chapter 2 of Title 6 of the Rules of the City of New York

 We have no comment.

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We appreciate the opportunity to provide comments on the proposed amendments. Please let us know if you have questions or if we can provide further assistance.

Respectfully submitted,

Donald S. Maurice, Chair
Consumer Affairs Committee

Charles Giudice, Co-Chair
Civil Court Committee

Tedmund Wan, Co-Chair
Civil Court Committee