New York City Process Server May Lose License For Filing False Affidavit Of Service Outside New York City

The New York City Department of Consumer Affairs (DCA) licenses process servers in the City. What happens if a process server files a false affidavit of service outside of the City. Can the Department of Consumer Affairs take away his license? Last week, the Second Department in Matter of Laureiro v New York City Dept. of Consumer Affairs, 2007 NY Slip Op 05509 held that it could. The process server at issue had served process in Connecticut relating to a matrimonial action in Westchester County. In response to a complaint that the process server filed a false affidavit of service, the DCA requested a written explanation from the process server and issued a subpoena commanding him to appear before it and to bring copies of certain records. The process server’s counsel responded with letters contesting DCA’s jurisdiction over issues related to service of process occurring in Connecticut in connection with a Westchester County action. The process server then failed to appear pursuant to the subpoena. DCA then sent the process server a notice of hearing which outlined the charges against him and directed him to appear and show cause why his license should not be revoked.

Prior to the hearing date, the process server commenced a CPLR article 78 proceeding seeking to prohibit DCA from conducting the hearing, based on its alleged lack of jurisdiction over the matter, among other challenges. The Supreme Court declined to issue a temporary restraining order and DCA rescheduled the hearing. The process server failed to appear at the hearing, and the Hearing Officer found him guilty, upon default and revoked his license. The petitioner then amended his article 78 petition to seek review of the DCA determination.

On appeal in the Second Department, the Court rejected the process server’s argument that the DCA lacked jurisdiction to revoke his license. The Court noted that the DCA was charged with the maintenance of standards of integrity, honesty, and fair dealing among persons engaging in licensed activities (see Administrative Code of City of NY § 20-101). And it stated that the filing of a false affidavit of service in any location was relevant to a licensee’s fitness to serve process in the City of New York. Moreover, it noted that pursuant to Administrative Code § 20-104, the Commissioner of DCA was authorized, upon due notice and a hearing, to impose penalties:

for the violation of . . . any of the provisions of any . . . law, rule or regulation, the enforcement of which is within the jurisdiction of the department . . . provided that such violation is committed in the course of and is related to the conduct of the business, trade or occupation which is required to be licensed (NYC Admin Code § 20-104 [e][1]).

It stated that the filing of a false affidavit of service was a violation of DCA Rules committed “in the course of” and “related to” the conduct of the occupation of process server, regardless of which county the affidavit is filed in or where the service allegedly occurred. Thus, DCA had the jurisdiction to hold the hearing into the process server’s continued fitness to hold his DCA license and to issue its determination upon the process servers’ default.

Leave a Reply

Your email address will not be published. Required fields are marked *