Will There Be Any Process Servers Left in New York City?

Process is generally defined On May 1, 2014, I celebrated to be the means by which 37 years in business under the name Serving By Irving, Inc. My a defendant in an company is known in the legal profession and throughout the action is compelled to world for its expertise in process appear in Court. serving and in private investiga- tions. We specialize in difficult assignments: the work that oth- ers can’t or won’t tackle.

I got by reasonable efforts, personally delivered to an individ- my start in process serving ual defendant, he can be notified a different way — when I was managing a law firm and a process server through an intermediary (a “person of suitable age and reported he could not locate the address 350 Fifth discretion”) and subsequent mailing, or even by affixing Avenue. The address was the Empire State Building! As the process to a door, with subsequent mailing.

Under a joke, I asked the senior partner, “Why don’t I get a those circumstances, the process server cannot prove that license and you could pay me to serve the papers?” He the defendant ever received the process he served, only agreed, and Serving By Irving was born. that he followed the rules for service. What Is Process? Why Is Service Contested?

Process is generally defined to be the means by In almost all cases, defendants do not wish to be which a defendant in an action is compelled to appear in sued. And in some, plaintiffs have difficulty locating Court. In New York State, it historically preceded the fil- defendants.

These are the primary reasons plaintiffs use ing of papers with a Court (in the federal system the process servers. They need an expert; they need some- papers were filed first) and was the necessary predicate one who keeps excellent records. They need someone for an exercise of jurisdiction over the person of the who can testify in court, if necessary, that service was defendant by a court.

It usually consists of a summons properly made. Some defendants will contest service of and complaint. Nowadays, New York’s rules have process that they have in fact received.

And because of become more similar to those of the federal courts. The the rules permitting constructive service, some will not index number is purchased first, process is served, and have received the process even though the rules of Irving Botwinick is founder of Serving By Irving, Inc. Specializing in serving legal papers on the hard-to-find, he once scrubbed up as a surgeon to serve a doctor in the operating room.

He’s climbed fire escapes, engaged in cab chases, and members of his staff gained access to the board room of a major corporation by pretending to deliver a Strip-O-Gram. Irving Botwinick began in the investigative field in 1964 when he worked with the United States Air Force in the investigative section of Air Force Special Units. He later became an investigator for insurance companies.

As a supervisor and manager of claims, his duties included investigating cases. From 1974-77, Mr. Botwinick was the administrator of the law firm of Kravet, Hoefer & Ryan.

In 1977, he founded Serving By Irving, Inc. which is currently the world’s leading specialist in process serving. He is the founder and past president of the New York State Professional Process Servers Association, and is a founding member of the National Association of Professional Process Servers. He is a licensed private investigator and the immediate Past President of the Society of Professional Investigators.

He has appeared as an expert in the field of process serving and investigations on numerous TV and radio programs, in addition to being called as an expert witness in numerous court cases. Mr. Botwinick has been a lecturer at many colleges.

Mr. Botwinick is a member of the Board of Directors of National Coalition of Concerned Legal Professionals and also of New York State CCLP. 10 Verdict Will There Be Any Process Servers Left in New York City? Still, process servers must deal with situations in which there is bad feeling between the parties that the process server might not even know about.

Defendants may also be evasive, move around a lot, or be located at great distances from the court; and in those instances the defendants are more than usually likely to contest service. For their part, courts do not like to have to deal with service issues. Judges may be asked to compel a defen- dant to appear on pain of default, but our civil litigation system insists upon adjudication on the merits with both sides participating if that is at all possible.

Vacating a judgment that has already been issued basically declares all previous proceedings to have been a waste of the court’s time. Service issues therefore are seen as distrac- Mike Keefe/Intoon.com tions that are often time-consuming, vexing and expen- sive. In these days of budget cutbacks and overloaded service were properly followed.

If the issue of service court dockets, judges do not want their time wasted in arises before the judgment is taken, the court will only hearings on the sufficiency or propriety of service. be interested in whether the rules for service of process were followed. Obviously, if a person did not receive What Are Interlocutory Papers? process that was properly served, the judge will likely give that person a reasonable time to respond. On the A distinction must be made between process, and other hand, if the contest arises after judgment, the interlocutory papers.

The former refers to the papers judge will be much more likely to rule on the basis of that initiate an action, while the latter refers to all the whether the process was actually received. If he believes other papers a party serves and files between the time the defendant did not receive service of process (along the action is commenced and the end of the action or with the many papers that would follow it), he will like- proceeding. ly vacate the judgment. The law of service of process, which in New York Sometimes, errors are made in service of process.

And State is contained in the Civil Practice Law and Rules in the worst of cases, plaintiffs engage in “sewer service,” (CPLR) and the General Business Law (GBL), treats i.e., service of process that the plaintiff knows is not like- them differently. Interlocutory papers can be served by ly to notify the defendant of the existence of the litiga- anyone over 18 and not a party to the action, whereas, tion. This is a matter of constitutional significance, since process may only be served by a licensed process serv- the defendant has a due process right to notice and an er, unless it is served by someone who is not paid for the opportunity to be heard.

Moreover, such deficient service service and who has not already served process four often involves outright lies and deceit. other times in the preceding 12 months. Will There Be Any Process Servers Left in New York City? Verdict 11 How One Becomes a Process Server In New York State anyone over the age of 18 can become a process server.

There are no exams or fingerprinting needed, no applications to complete and no experience necessary. A teenager out of high school looking for part- time work can serve papers, with no restrictions. He or she makes their own hours, no one looks over their shoulders and they usually work and get paid per assignment or paper served.

They can secure their assignments by going to a process serving agency or just asking lawyers if they need work done. Requirements for New York City Process Mike Keefe/Denver Post Servers Are More Stringent swearing they served someone with legal papers, but The above, however, is not true in the five boroughs they actually dumped the papers in the sewer; the per- of New York City. The Department of Consumer son remained unaware of legal proceedings pending Affairs in New York City licenses process servers.

They against him. The true situation would come to light were doing that long before I received my license in when, for example, someone was now trying to close 1977. During those years anyone over the age of 18 on the sale of his home, but at the closing it was learned merely went to the Department, filled out a form, had for the first time that this individual had allegedly been fingerprints taken and paid $20.00 for a two-year served on another matter that now encumbered title to license.

In the late 1980s, the fees went up to $340.00 the sale property. Hence, judgments had been filed for a two-year period. against the individual that now had to be vacated by Process servers in New York City have had a bad proving they had never been served. Some servers reputation.

In 1983, the Department of Consumer were fined, some licenses were revoked and a few Affairs investigated servers for what is called “sewer servers were criminally charged. service.” What was happening was that some process Recently, in 2009, the topic of sewer service again servers would complete an affidavit of service, made the headlines when a process serving company Fearonce G. LaLande ATTORNEY AT LAW 207-01 HILLSIDE AVENUE Certified Realtime & Traditional Reporters Legal Videography QUEENS VILLAGE, NEW YORK 11427 fglalande@aol.com New York New Jersey Nationwide 212.273.9911 732.906.2078 800.310.1769 PHONE: (718) 217-7146 www.HudsonReporting.com FACSIMILE: (718) 217-7149 Email: Depo@HudsonReporting.com LAW OFFICES OF James Lance Kaller Attorney at Law 155 MONTGOMERY STREET, SUITE 1004 SAN FRANCISCO, CA 94104 Phone: (415) 362-9134 Fax: (415) 434-1880 12 Verdict Will There Be Any Process Servers Left in New York City? company must review each server’s records once a month, and check each page in the server’s log books for any cross-outs, errors, mistakes such as dates and times, hair color, weight, height, etc., of the person served as well as confirming that the location served matches the record produced by the server’s GPS device. Some companies have 20, 30 or 40 process servers per month serving papers for them.

Imagine the time this takes to carefully review each detail. I do not know of any other licensed person or com- pany that requires this type of scrutiny. For example, my company and I are private investigators licensed by the State of New York, which required a one-time test (not every two years), fingerprints and bonding.

When it Mike Keefe/Intoon.com comes time to renew, we simply fill out a form, renew our bond and send in a fee. There are no compliance lied about their service of over 100,000 matters in con- records required or threats of audits. sumer debt actions. The owner of the process serving The cost to become a process server is as follows: company went to jail and that’s when the process serv- License . . . . . . . . . . . . . . . . . . $340.00 for two years ing rules and regulations of the Department of Con- Test . . . . . . . . . . . . . . . . . . . . . . $75.00 every two years sumer Affairs dramatically changed.

Fingerprints . . . . . . . . . . . . . . $75.00 one-time charge Today, in order to secure a process server’s license, an Monthly fee for GPS . . . . . . . $40.00 depends on individual must complete an application, be fingerprint- requested service ed, take an exam, be bonded and secure a GPS tracking Bond . . . . . . . . . . . . . . . . . . . . $100.00 average for application through a third-party company that moni- two years tors each case. Servers are now and have been recently The bond for an individual covers $10,000.00, while audited, and have been heavily fined, as well as having for a process serving company it’s $100,000.00 (the been threatened by the Department of Consumer Affairs. bond cost for a company is about $1,000.00 for two Obviously these requirements drive up the cost of doing years). business for process servers. In addition to the recordkeeping, process servers as well as their companies are faced with certain time Supervisory Work to Run a Process demands; for example, whenever there are Traverse Serving Company hearings (a hearing usually held before a judge or refer- ee when service is contested to determine the validity of The paperwork is enormous for both the individual the service), it can be very time consuming for the as well as the process serving company.

For example, a process server, with no remuneration. San Francisco Building and Construction Trades Council AFL-CIO David Michael Bigeleisen salutes CCLP’s fight for meaningful legal recourse Criminal Defense Attorney for low-income workers 1155 Pine Street San Francisco, CA 94109 (415) 957-1717 (415) 345-9333 Will There Be Any Process Servers Left in New York City? Verdict 13 The result of all these changes and requirements is by mail or any other means other than a server knocking that many servers have decided it is no longer a viable on your door is far away. job for them.

With the amount of time it takes to serve a paper, plus the cost of gas, Editor’s Afterword: Coali- tolls, wear and tear on their tion of Concerned Legal Pro- cars, and all the above fees fessionals is dedicated to the to maintain the license, fight for meaningful access to many servers decide it is the courts for low-income just not worth it. workers, and as part of our Many years ago there benefit program, our CCLP were over 2,000 licensed chapters have organized thou- process servers in the City of sands of attorneys over the New York; the number is years to provide legal advice now down to about 500. The and education to the low- diminishing number of income members and con- servers may result not just stituents of organizations from the burdensome condi- with which CCLP collabo- tions on holding the license rates. Too often, both the cost and practicing as a process of retaining an attorney and server, but also from less the fees and expenses of prose- demand for process servers. cuting litigation leave low- For example, years ago income workers without attorneys took on larger vol- access to the courts.

Retain- umes of personal injury and ing a process server is only medical malpractice cases. one of many such expenses. However, the laws have The heightened requirements since changed in those areas spoken to by the author result limiting litigation to severe in process servers having to Illustration by Peter K. McDonnell injuries and thereby reduc- raise their fees. ing the number of cases filed As Mr.

Botwinick notes, requiring service. those who cannot afford the cost of process service may enlist someone over the age of 18 who is not a party to the action to Conclusion serve the papers for them, so long as that individual has not served process (i.e., served the papers initiating a lawsuit or a Process servers serve an essential role in our legal hearing for an order to show cause) more than four times in the system. What does the future hold in store? Will there previous year.

The Help Center of the New York State Supreme be service by Facebook or Twitter? I’ve seen several Court, Civil Branch, for example, publishes a bulletin entitled cases where the attorney requested the court to approve “How to Serve Legal Papers,” which explains in detail the serving by FedEx. process someone must follow to serve process and execute the affi- I believe personal service of process will be around for davit of service. This explanation can be found at many more years.

Jurisdiction over an individual is most https://www.nycourts.gov/courts/1jd/supctmanh/Self- important for a lawsuit. Relying on securing jurisdiction RepForms/HowServe.pdf. ADMITTED NY, PA, D.C. _xÉÇtÜw ]A _xäxÇáÉÇ MICHAEL W.

WARREN ATTORNEY AT LAW Attorney at Law 225 Broadway Tel: (718) 230-9790 New York, NY 10007 Fax: (718) 230-5145 e-mail: tarifwarren@aol.com Tel: (212) 732 - 0522 Fax: (212) 587 - 0570