The most recent lawsuit against the Department of Consumers Affairs by the New York State Professional Process Servers Association (NYSPPSA) was dismissed on August 18th. A copy of the complete dismissal opinion and order can be found here.
The bulk of the lawsuit focused on the following issues:
- The adjudication of process servers was caused without a legal basis to do so
- Subpoenas were issued which contained express directives preventing the recipients from notifying anyone of their existence, violating their right to counsel
- Process servers were found in violation based on unsworn testimony or proof beyond a reasonable doubt, violating due process rights
- Fines were in excess of amounts permitted under rules and statutes
The news coverage of the dismissal has been less than favorable and what some would call slightly skewed. The New York Times covered the issue, saying “Consumer Affairs still receives about 40 complaints a year from consumer and legal advocates that papers were not served”. Over 500,000 papers have been served in New York City since January, which puts the complaint rate at 0.008%. Even if not all complaints are reported as the article says, quadrupling the number of complaints would still only put the complaint rate at 0.032%.
The previous lawsuit NYSPPSA pursued against the DCA settled back in July 2011. At the time, the overseeing judge refused to dismiss the case and process servers saw some concessions from the court and the DCA. Since then, New York process servers have been plagued by expensive and time-consuming compliance requirements, including GPS tracking and log books. The fines have been even more exorbitant, with servers seeing fines for each instance of a violation.
The dismissal of the most recent lawsuit is somewhat discouraging in an industry that has seen process server license renewals decrease by more than 60% in the past two years. NYSPPSA plans to appeal the decision.