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EXCEPTIONS TO THE EVICTION MORATORIUM

Eviction

By: Akanksha A Panicker

Virtually all eviction proceedings were suspended for sixty days after the state legislature enacted the Emergency Eviction Act at the end of last year. On Friday, February 26th, the delay came to an end. This means that unless a tenant submits a hardship declaration form to either the court or the landlord, currently underway eviction cases will resume, and new cases can be filed.

This indicates that any tenants facing eviction who may not have filed a hardship declaration could face legal action, as well as landlords being entitled to file new cases against tenants who have omitted to file a declaration. Consequently, only tenants who complete the hardship declaration form will have their moratorium extended until May 1st.

 Just about all tenants have been safeguarded from eviction since the end of December, seeing as cases have been paused. However, until February 26th, the moratorium security would only extend to tenants who have submitted a hardship declaration. The form itself is permitted to be filled out by May 1st to pause the case.  This form may also be presented to the marshal in charge of the eviction itself. Qualifiers to avail said the pause would need the individual to have experienced some financial hardship because of the pandemic or to prove that moving would pose a health risk.

[1.0] ABOUT THE COVID-19 EMERGENCY EVICTION AND FORECLOSURE PREVENTION ACT 

On December 28th, Gov. Andrew Cuomo signed the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (the ‘Act’) into law. The legislation seeks to protect New York State citizens adversely affected by the COVID-19 pandemic.

It was set into motion to prevent tenants’ evictions if they had lost income or accrued additional and increased expenses during the COVID-19 pandemic or if moving from their home would pose a hardship during the pandemic.

If the tenant signed and delivered the Hardship Declaration, they cannot be evicted from their primary residence under a pending case, and the landlord may not file a new case to evict them from their primary residence until at least May 1st, 2021. However, it must also be remembered that a landlord can still evict if [A.] the expiring lease itself is not renewed; [B.] the backlog for rent stretches before March of 2020 and six months’ rent or more was due on or after March 1st, 2020; [C.] The landlord wants to move into the tenant dwelling as their primary residence or if the tenant did some act that was a serious nuisance or violated their lease in a manner apart from falling behind in rent. 

The COVID-19 Emergency Eviction and Foreclosure Prevention Act expires on May 1st, 2021, but key protections under the New York State Tenant Safe Harbour Act may continue even after that date. Eviction cases pending as of December 28th in New York City Housing Court were thus suspended until February 26th, 2021. Eviction cases commenced from December 29th, 2020 through January 27th, 2021 had also been suspended for at least sixty days.

[1.2] EXCEPTIONS TO THE EMERGENCY EVICTION AND FORECLOSURE PREVENTION ACT

The legislation requires that landlords attach a blank copy of the hardship declaration form when they demand rent or file a petition for eviction. If a said copy of the form is not provided, it is necessary to record all the documents received. Thus, the moratorium also reinforces the burden of proof on the landlord: the courts assume that tenants are telling the truth on the declaration form and enforce said form on the tenant under ‘penalty of law,’ inviting legal consequences for misrepresentation. This renders the burden on the landlord to show the court that a tenant does not qualify rather than it being on the tenant to prove in court that they qualify for protection,

The definition of hardship in this document also spans a wider criterion than federal moratoria. The eligibility criteria go beyond lost income and account for challenges like added childcare expenses.

The new law also puts residential foreclosure proceedings on hold. It prevents new ones from being filed until February 26th, with the potential to put them off until May 1st if the owner fills out a hardship declaration form. The measure covers both mortgage and tax foreclosures and tax lien sales for past tax debt. The only exception is for vacant or abandoned property. The protection for homeowners encompasses a wide variety of hardships, including if a tenant has lost income and can’t pay rent.

Per custom, the major exception for eviction cases stems from the tenant causing a nuisance if said tenant engages in behavior infringing on other tenants’ use or enjoyment or creating a safety hazard. This means if a tenant is engaging in violence or illegal activity like drug dealing, they are always doing so under the continuing threat of eviction. Other behaviors traditionally considered a nuisance, like making illegal alterations to an apartment, don’t apply.

[2.0] WHERE  DOES THE CDC MORATORIUM FACTOR IN

The Centres for Disease Control and Prevention (CDC) released a directive barring landlords from evicting such tenants worldwide. The eviction moratorium was scheduled to expire on December 31st, 2020, but the CDC agreed to prolong it until March 31st, 2021. Tenants who fulfill the order’s conditions are liable for eviction defense. Qualified renters do not immediately gain immunity from the ban; instead, they are required to sign a declaration of eligibility for the ban and provide it to their landlord.

After the CDC’s eviction ban took effect on September 4th, 2020, property owners and tenants have been perplexed by the order’s specifics and the necessary tenant declaration.  Judges also misinterpreted the CDC’s order in some of the worst situations, culminating in the unjust removal of tenants liable for security. Consequently, the CDC and other federal agencies released a guidance document on October 9th, 2020, which addressed several of the ban’s most common queries. Although the manual clarifies certain Order elements, it also poses many concerns and avoids more specifics on how the Order would be applied to specific states and courts.

The CDC’s order requires tenants to sign the declaration under penalty of perjury. Consequently, notarization is not always necessary since the declaration meets the criterion under penalty of perjury.

A further aspect of the CDC order is that tenants do not have to provide their landlords with any documentation or proof when they deliver the signed declaration. However, if court action is put forth, a proof will likely be necessitated, especially if the court has to rule whether the declaration holds. While a tenant does not need to file for unemployment to qualify for protection, the eviction order applies to anyone who expects to earn as an individual no more than USD 99,000 in annual income for the calendar year 2021. If tenants are filing a joint income tax return, the ban applies to those who expect to earn no more than USD198,000 in annual income for 2021. This means that people who are still employed can take advantage of the ban, so long as their income does not exceed these limits.

Another requirement is that protection would have needed tenants to have ‘used best efforts to obtain all available government assistance for rent or housing.’ This means that the tenant is required to have exhausted viable means of financial assistance from government sources to avail of this benefit. However, private sources like non-profits are not required. ‘Available government assistance’ means any governmental rental or housing payment benefits available to the individual or any household member. This best efforts requirement has evolved as a point of contention between landlords and tenants, especially when it provides that tenants must explore benefits available to the individual and any household member.

[2.1] REQUIREMENTS FOR CDC PROTECTION TO TAKE EFFECT

Tenants must assert within their declaration that they are undertaking their best efforts to make prompt payment arrangements that are as similar to the maximum payment as the individual’s circumstances can warrant, taking into consideration other nondiscretionary expenditures. It must be noted that the CDC’s order does not differentiate between written and oral leases (oral leases are valid and enforceable for up to one year in most states). In fact, the order explicitly refers to ‘residents’ as well as tenants.

The concept of ‘best efforts’  assumes that individual circumstances are causing paying rent impossible for the tenant. The tenant must make partial rent payments if their conditions afford it without jeopardizing their ability to provide for other needs, including food, medication, and job transportation. Hardship would mean that eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options.

The landlord is also entitled to the entire rent after the moratorium expires. When the eviction moratorium expires (March 31st, 2021), the landlord would be free to evict the tenant and prosecute them for the maximum sum owing, even though they have been paying partial payments.

Landlords who violate the order might also be subject to fines and jail time. The CDC’s order states that landlords, owners of residential properties, or other people with a legal right to pursue an eviction (such as a corporation) ‘shall not evict any covered person from any residential property in any jurisdiction to which this Order applies during the effective period of the Order.’ The order defines an ‘eviction’ as ‘any action by a landlord, owner of a residential property, or another person with a legal right to pursue eviction or a possessory action, to remove or cause the removal of a covered person from a residential property.’ The order leaves the determination of whether a landlord has violated the order to the courts.

The CDC’s order states that landlords can still evict tenants if they [A.] engage in criminal activity while on the premises; [B.] threaten the health and safety of other residents or pose an immediate and significant risk of property damage; [C.] violate any applicable building code, health ordinance, or similar regulation relating to health and safety, and [D.] violate any other contractual obligation besides non-payment of rent or similar housing-related payment, including non-payment or late payment of fees, penalties, or interest.

For information on serving eviction papers, contact our eviction service (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

Sources

1. The Centres for Disease Control and Prevention moratorium that was originally scheduled to expire on Jan. 31

2. The New York State Legislature passed a bill signed by Governor Andrew Cuomo, which puts into effect two eviction moratoriums. The first puts a stay on any eviction proceedings commenced on or before March 7th, 2020, for 60 days, while the second stays all eviction matters commenced between December 28th, 2020, and January 27th, 2021, for 60 days from filing. The legislation also prevents courts from issuing default judgments authorizing eviction without first holding a hearing.

Also, the bill protects some small landlords from foreclosure and provides relief in the form of tax exemptions to older homeowners or those with disabilities.

3. 28 U.S. Code § 1746 – Unsworn declarations under penalty of perjury 

Wherever, under any law of the United States or any rule, regulation, order, or requirement made under the law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form: 

(1) If executed without the United States: ‘I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).(Signature)’.

(2) If executed within the United States, its territories, possessions, or commonwealths: ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).(Signature)’.

4. However, this does not mean that the Declaration works in a blanket manner. The CDC’s agency order states: ‘Each adult listed on the lease, rental agreement, or housing contract should likewise complete and provide a declaration.’ (Federal Register Vol. 85, No. 173, p. 55292.).

5.Indicated by describing the order ‘that tenants, lessees, or residents of residential properties who are covered … may use.’

6. Said rent is inclusive of any late payments or costs the individual agreed to under the contract or leasing agreement

7. Individual landlords who violate the order could be subject to:

  1. a fine of no more than $100,000 if the violation does not result in death (or no more than $250,000 if the violation results in death),
  2. one year in jail, or both.

An organization (such as a corporation, LLC, or real estate investment trust, or REIT) that violates the order could be subject to:

  1. a fine of no more than $200,000 per event if the violation does not result in death, or
  2. $500,000 per event if the violation results in death.

8. Federal Register Vol. 85, No. 173, p. 55294.

9. The CDC specifically notes that tenants who have COVID-19 and take reasonable precautions not to spread the disease do not pose a health or safety risk to other tenants

THE KU KLUX KLAN ACT OF 1871

Capitol Hill

By: Akanksha A. Panicker

The Enforcement Act of 1871, known as the Ku Klux Klan Act, is an Act of the United States Congress that motivated the President to suspend the writ of habeas corpus to counter the Ku Klux Klan (KKK) as well as other white supremacy associations. The legislation was passed by the 42nd United States Congress and was ratified by the 18th United States President Ulysses S. Grant. The Compliance act was the second of three enforcement acts enacted by the United States Congress from 1870 to 1871 to tackle attacks on African Americans’ suffrage rights and protections during the American Civil War. Since then, the law has only been changed marginally but has been subject to wide interpretation by the courts after initiation.

This Act was ordered by President Grant and was approved soon after he released the request for its passage. Based on the news he was getting of systematic racist threats in the Deep South, Grant tried to preserve African-Americans’ rights. However, he believed that he was required to acquire more control before instilling impact sufficiently to eliminate overt discrimination. For the first time, the president was free to eliminate state disorders on his own initiative and temporarily stop the right of habeas corpus. Grant did not falter in utilizing this power on several occasions during his administration. Consequently, the KKK was entirely disbanded (ending the “first Klan” era) and did not resurface in any significant way until the beginning of the 20th century.

Several of the act’s guidelines continue even as public policy. The most significant of these protections is 42 U.S.C. § 1983, the statute banning human rights deprivation.

[1.0] BACKGROUND IN THE FIRST ENFORCEMENT ACT

The Enforcement Act of 1870, also known as the Civil Rights Act of 1870, allowed the President to implement the Fifteenth Amendment’s first part across the United States. The Act was the first of three Enforcement Acts created by the Congress in 1870 and 1871 to confront challenges to African Americans’ voting rights from state officials or rampant groups like the Ku Klux Klan.

The Enforcement Act of 1870 banned voter registration discrimination on ethnicity, color, and prior servitude. The law created sanctions against individuals restricting elections and granted federal courts the authority to implement the law.

The Act also allowed the President to deploy and sanction the army’s use to guarantee the Act’s compliance and the use of federal marshals to bring proceedings against criminals for electoral abuse, the bribery or coercion of electors, and conspiracies to discourage people from practicing their constitutional rights.

The bill was enacted to secure people’s ability to vote depending on their race.

[2.0] OBJECTIVE OF THE ENFORCEMENT ACT

The Ku Klux Klan Act was the third in the set of Enforcement Acts intended to secure the civil and political rights of four million former slaves then freed. The 14th Amendment, passed in 1868, granted citizenship and fair rights under the law to everyone. However, racial vigilantes like the Ku Klux Klan disrupted the South’s Restoration and even undermined the Republican Party. 

Thus, the President was authorized to intervene in the former rebel states that wanted to deprive ‘every individual or any class of people of the laws’ fair treatment.’

 By penalizing the newly identified federal offense, the President could revoke habeas corpus, impose martial action, or use military force. Opponents to the bill rallied outcry against the law, citing the grounds that it encroached on states’ privileges and breached private freedoms. All the federal government’s control has one individual also emerged as a major concern.

 However, support for the doctrine was also widespread.    Supporters quoted the maintenance of fair treatment promise under the law by fostering equality in the law as ensured by the 14th Amendment. After both the Senate and the House approved the measure, President Ulysses S. Grant signed it into law. Six months later, in October 1871, Grant exercised these forces in many South Carolina counties showing the Republican-led federal government’s ability to use drastic measures to secure the civil and political rights of the freed citizens.

[2.1] HISTORY OF THE THIRD KLAN ACT 

Many states disapproved of the KKK to practice through other channels. Laws were set into motion to outlaw the KKK completely. Numerous members of the KKK were convicted and charged in federal court. The Klan was militant in its public stance after the federal charges report and later somewhat withdrew from the public eye.

In January 1871, a legislative hearing was convened in Congress for KKK witnesses to provide their testimonies. In February, a bill was proposed by Republican Congress Representative Benjamin Franklin Butler of Massachusetts aimed to uphold both the Fourteenth Amendment and the Civil Rights Act of 1866 in a novel anti-Klan bill. 

However, Butler’s bill was narrowly thwarted in the Senate, whereupon a replacement bill was proposed that marginally modified the scope to be not as comprehensive as Butler’s bill. This bill forced a few holdout Republicans into line, and the bill’s passage in the House, Senate, and the signing off by President Grant signified its popularity.

[2.2] HOW THE LEGISLATION WORKED

A. SECTION 1 OF THE ENFORCEMENT ACT

Section 1 of the Act, which has since been amended and codified at 42 U.S.C. § 1983 and is now known as ‘Section 1983’, authorized monetary and injunctive relief against anyone acting under the authority of state law, deprived a person of their constitutional rights. Section 1983 is the most prominent and commonly-litigated civil rights statute. 

Under Section 1983, monetary damages could be awarded to those individuals for whom a State actor had violated the constitutional rights. Ordinarily, violations of constitutional protections are rectified through injunctions by court orders.  

Owing to this precedence, if a person’s right to due process was violated by a correctional officer acting under the state’s authority, this person could sue the guard in civil court for monetary damages. Without the basis in § 1983, such an individual would need to seek a civil suit for the constitutional violation. The major issue with such an operation by the tribunal would be that injunctions, which instruct a party on penalty of contempt if a party does not perform or refrain from performing some action, cannot be used to alter events from the past, only wrongs in the future. Thus, it leaves the individual in a position where the plaintiff has brought an actionable claim with no adequate remedy.  A lawsuit may be brought by anyone seeking the legal cause of action right.

Circumstances changed in 1961 when the Supreme Court articulated the statute’s three important purposes were [A. ]to over-rule particular kinds of state laws  [B.] to provide a remedy where state law was inadequate; and [C.] to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice.

Section 1983 enables citizens to file suit to remedy some of their federally protected rights, like the First Amendment and the Due Process Clause, and the Equal Protection Clause of the Fourteenth Amendment. Section 1983 can be used to enforce violated constitutional rights, such as to protect against discrimination based on race, color, national origin, sex, and religion.

B. SECTION 2 OF THE ENFORCEMENT ACT

Interestingly, this Section of the Act was so long that it was addressed separately, and it received more attention from Congress during the debates. The law prohibited conspiracies against the U.S. government, actions that would put the nation at war, and various other violations. 

Section 2 originally provided for both criminal and civil liability. However, the criminal aspect of the provision was found to be unconstitutional, and therefore, was eventually overturned by the Supreme Court.

The federal civil liability portion of the law was codified at Title 42, United States Code (U.S.C.) § 1985. Section 1985 allows for lawsuits against people who conspire to interfere with the government, obstruct justice, or deprive someone of equal protection under the law.

Section 1985(1) encompasses conspiracies to expel a public official or a legislator from office violently or even prevent them from taking office in the first place or “molest, interrupt, hinder, or impede” officials duties.

Section 1985(2) addresses conspiracies to harm and/or threaten witnesses and jurors in federal courts or to interfere with court proceedings “with intent to deny equal protection of the laws.”

In response to the Klan’s practice of wearing masks and hoods that cover their faces, the legislation prohibits two or more people from wearing disguises or otherwise conspiring to deprive a person or class of people of equal protection of the law or legal rights. Furthermore, Section 1985(3) contains the “support-or-advocacy clauses,” which cover conspiracies to prevent citizens from expressing their beliefs and their support for candidates.

C. SECTION 6 OF THE ENFORCEMENT ACT

Section 6 of the Act imposes civil liability upon persons who know of a violation of Section 1985 or a planned violation of Section 1985 and who are in a position to prevent it but who fail to prevent it. Section 1986 deals with conspirators who deny people their rights, but Section 1983 deals with people who allow such conspiracies to exist. Legislators recognized that the Klan’s political violence could not continue without the tacit approval from local community leaders, who, in turn, were held financially responsible for failure to prevent such acts. This segment of the law is used to prevent terrorism in contemporary days by providing a disincentive for those who would protect or foster a conspiratorial terrorist act.

[3.] ERAS OF USE OF THE KU KLUX KLAN ACT

  1. RESTORATION ERA

During Restoration, federal soldiers were used to imposing the nation’s rule rather than individual state militias, and Klan members were tried in federal court, where the juries were predominantly African-American.   Hundreds of Klansmen were convicted, and habeas corpus was suspended in South Carolina. These actions were so successful that the Klan was defeated in South Carolina and decimated in the majority of the former Confederacy, where it had already been in decline for many years. 

The Klan would not reappear until its recreation in 1915. At their height, though, the ‘first age’ Klan did accomplish much of its targets, such as disenfranchising Southern African-Americans.  In its creation, the Grant Administration saw the legislation being utilized with the Force Act to provide justice against those abusing the Civil Liberties of newly freed African Americans. At the Grant Administration’s conclusion in 1877, regulation of the Act dropped into disuse, and few prosecutions were brought under the law for nearly a century.

  1. USE IN MODERN TIMES: PRESIDENCY OF DONALD TRUMP

Rep. Bennie Thompson, D-Miss, and the NAACP initiated prosecution against former President Trump and former Secretary of State and former New York City Mayor Rudy Giuliani for purportedly collaborating with white nationalist organizations and hate groups to occupy the Capitol and keep electoral votes from being counted in the Electoral College. The plaintiffs used the 150-year-old Enforcement Act statute to justify their assertion.

Thompson and the NAACP allege in the case that Trump, Giuliani, the Proud Boys, and the Oath Keepers used “intimidation, harassment, and threats” to halt the vote count and that the Jan. 6 Capitol riot was the result he was the basis for the breach that triggered the 1871 Ku Klux Klan Act.

In December 2020, the NAACP and Michigan Welfare Rights Association, along with a coalition of Detroit residents, sued President Donald Trump and the Republican National Committee under the Voting Rights Act.

The complaint claims that President Trump and the Republican Party orchestrated a concerted plot to manipulate the 2020 presidential election in Michigan, Georgia, and Pennsylvania by threatening election officials and volunteers.

In February 2021, the NAACP and the law firm  Cohen Milstein Sellers & Toll lodged another case listing Congressman Bennie Thompson as the defendant. Other congresspersons who were already victims joined up to suit.    The lawsuit charges breaches of the State Election Campaign Act relating to the 2021 polls. It further alleges a plot to incite unrest contributing to the 2021 storming of the U.S. Capitol.

[3.2] HOW DOES THE ENFORCEMENT ACT HOLD UP TODAY

While some clauses were deemed unconstitutional in 1883, the 1870 Force Act and the 1871 Civil Rights Act have indeed been invoked in subsequent civil rights confrontations.

The 1871 Civil Rights Act can protect individuals from state action whenever a federal right is violated. Today’s most common use is to demand that the Fourth Amendment be upheld in unreasonable search and seizure.  

The Enforcement Act was intended to give African Americans and those who supported the freedom efforts a federal cause of action, a right to a lawsuit for the deprivation of rights protected by the statute. Consequently, African-American rights activists and jurists have asserted the Enforcement Act’s applicability in the context of current issues, particularly after the insurrection at the Capitol. While the statute itself is rarely used, it is a powerful sanction against white supremacist groups.

For information on serving legal papers, contact a Professional Process Service, call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

Sources

1. Third Ku Klux Klan Act, Civil Rights Act of 1871, or Force Act of 1871,

2. First Ku Klux Klan Act, or Ku Klux Klan Act (41st Congress, Sess. 2, ch. 114, 16 Stat. 140

3. The act developed from separate legislative actions in the House and Senate. H.R. 1293 was introduced by House Republican John Bingham from Ohio on February 21, 1870, and discussed on May 16, 1870.[5] S. 810 grew from several bills from several Senators. United States Senator George F. Edmunds from Vermont submitted the first bill, followed by United States Senator Oliver P. Morton from Indiana, United States Senator Charles Sumner from Massachusetts, and United States Senator William Stewart Nevada. After three months of debate in the Committee on the Judiciary, the final Senate version of the bill was introduced to the Senate on April 19, 1870. The act was passed by Congress in May 1870 and signed into law by United States President Ulysses S. Grant on May 31, 1870.

4. Administration supporter William E. Lansing of New York dismissed the “mischievous doctrine of State sovereignty” and cited the occurrence of “acts of outrage and violence . . . where the States where they arise have either no capacity or will to prevent.”

5. “Let all groups, divisions, and races of our societies feel that the wellbeing of the one is the welfare of the other.”.

6. Called by  Republican Senator John Scott of Pennsylvania

7. This replacement bill was signed in by Republican Representative Samuel Shellabarger from Ohio

8. 42 U.S.C. § 1983 now reads:

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in action at law, suit in equity, or another proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For this section’s purposes, any Act of Congress applicable exclusively to the District of Columbia shall be considered a statute of the District of Columbia.

9. The overturning of Section 2 was done in the 1883 case United States v. Harris

10. now codified at 42 U.S.C. § 1986

11. Famously seen in the 1964 murders of Chaney, Goodman, and Schwerner; the 1965 murder of Viola Liuzzo; and in Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993), wherein the court ruled that “The first clause of 1985(3) does not provide a federal cause of action against persons obstructing access to abortion clinics.”

HOW TO SERVE THE NEW YORK CITY FIRE DEPARTMENT

New York City Fire Department

By Akanksha A. Panicker

The New York City Fire Department is a New York City government department that delivers fire protection, technical rescue services, biological, chemical, and radioactive hazard responses, and emergency medical services.

The New York Fire Department is the largest municipal fire department in the United States and the world’s second-largest department after the Tokyo Fire Department.  The Fire Department is regarded in its title 3 regulations that are compiled in New York City Rules. ‘New York’s Bravest’ for fire and ‘New York’s Best’ for EMS have remained the Department’s motto, with the  FDNY officials providing community services to more than 8.5 million people.

[1.0] STRUCTURE OF THE NEW YORK CITY FIRE DEPARTMENT

As with most fire departments of key cities in the United States, the New York City Fire Department is structured in a paramilitary manner, which in many instances, resonates with the police department’s composition. The department’s executive staff comprises two parts that include a civilian Fire Commissioner who represents the department as its head and a Chief of Department who serves as the operational leader. The executive staff features several civilian deputy commissioners who become responsible for the various administrative bureaus inside the department, alongside the Chief of Department who serves as the overall director of the department and Chief of Fire Operations, Chief of EMS, Chief Fire Marshal, Chief of Training and other staff chiefs. Tour command (TC) is made up of the citywide tour commanders, Chief of Fire Prevention (CFP), and the Chief of Safety (COS.)

The department is split into five Borough Commands to monitor the New York City boroughs by geographical proximity. Each Borough Command has a Borough Commander. The Commander of Manhattan is an Assistant Chief, while the other Borough Commanders each carry Deputy Assistant Chief’s rank. 

Each Borough Command includes nine firefighting Divisions, each led by a Deputy Chief, who also have numerous Deputy Chiefs to assist the Chief when they are not on duty. Each Division is made up of four to seven Battalion Chiefs who lead the Battalion. The spearhead over the Chiefs is the Battalion Commander, and his subordinates are Battalion Chiefs. Firefighting units consist of three to eight firehouses and 180–200 firefighters and officers, usually forming said battalion. Every firehouse comprises one to three companies; each fire company has a Captain who has three Lieutenants and contingent to twenty of their own. 

[2.0] HOW TO SUBMIT A REQUEST

The Fire Department of the City of New York commonly provides the public with access to records in compliance with Federal, State, and NYC laws. Requested records may easily be acquired via New York City Process Service, mail, or online through open records but need to be accompanied with [A.] the forms that are needed to complete the process and [B.] a cheque or money order for applicable fees payable to ‘NYC Fire Department’ and [C.] a stamped, self-addressed envelope. 

It must be noted that FOIL requests are different from subpoena requests. Subpoenas for the Fire Department need to be ‘so ordered’ by a judge unless otherwise specifically authorized by federal or New York State law; if the subpoena is thus authorized, it may move further to be served via New York City Process Service on the Department coupled with the subpoena fee.

[2.1] HOW TO RECORD AN FDNY VIOLATION.

An FDNY violation is an official notice that a property is not in compliance with the New York City Fire Code and/or Fire Department Rules. The degree of said non-compliance also varies greatly, with priority assigned to infractions requiring immediate action by the Fire Department. Sometimes, these actions may also lead to even the issuance of a criminal summons. 

An inspection that the FDNY conducts can show the issues that have occurred in the space. However, New York City primarily issues Violations by way of [A.]  Notice of Violation, Violation Order, [B.] criminal summonses, and a [C.]vacate the order.

To remove a violation from the record, the unsafe condition must be corrected, and Proof of the Correction must be provided to the FDNY. After correcting the condition, a Certificate of Correction must be completed within thirty-five days from the day the violation originally was issued. Locations, where a Vacate Order was issued must be re-inspected to complete the correction process. To fix a violation, the hazardous state must be fixed, and a successful effort must be taken for proof of correction. All FDNY summonses, except those that charge failure to certify correction, false certification, or violation of a Commissioner’s order (other than the order to certify correction),   include an order requiring the defendant to correct the conditions constituting the violations and to file a   certification with the Department that the conditions have been corrected. After finishing the unsafe condition treatment, a Certificate of Correction should be completed within thirty-five days of when the violation originally was issued. Locations who obtained a Vacate Order must re-inspect to amend the finding.

The FDNY can provide copies of violations. To ensure quick delivery, be sure to complete the Copy of Violation Request Form and attach all required documents. However, Vacate Orders can be obtained only in person. 

Translated Downloads

Many of the Fire Department’s Records Request forms have been formally translated into several languages, including Spanish, Chinese, Russian, and Hebrew. 

[2.2] PROCEDURE FOR SUBMISSION OF A FOIL REQUEST.

All New York State and municipal departments that perform a governmental or proprietary function are open to the FOIL. Each government entity that has had firefighting responsibilities – fire districts, fire departments, and volunteer ambulance departments – is considered a part of the agency of the FDNY. 

The Freedom of Information Law request demands that a request for public documents be sent to the ‘Records Access Office’ which a person must send, by mail, or by email (every agency subject to FOIL, provided that it has the ability to receive requests for records from the public and transmit records using email, is required to do so.

As per the New York Department of State, where an entity has the capacity to scan a record with the adequate technological tools required to do so without an unnecessary effort additional to taking action to a request in a varied manner, and a request is provided to provide the record by email, the agency should do so to adhere to FOIL.

Agencies need to produce the records maintained, allowing for limited requested access to any of the documents in their custody until an exemption allows the department to withhold the same under grounds specified in the FOIL. The grounds for refusing access to a person are set out in the legislation. Among these are documented [A.] expressly protected from disclosure under state or federal statute; or [B.]if revealed would constitute an unwarranted invasion of personal privacy; or [C.]if released would hinder present or imminent contract awards or collective bargaining negotiations; or [D.]  trade secrets or are submitted to an entity by a commercial enterprise or extracted from knowledge received from a commercial enterprise and which if disclosed would trigger substantial injury to the favorable position in a competition held by the relevant enterprise; or [E.] which are compiled for law enforcement purposes and which, if disclosed, will either impede justice by dealing in court proceedings or would infringe upon the right to a fair and unbiased trial or wilfully report or release to another individual or organization the presence of a criminal investigation; or iii. reveal criminal investigation tactics or procedures, without routine techniques and procedures; and, or, if revealing details that may threaten someone’s life or protection.

[2.3] WHEN CAN A REQUEST BE  DENIED AND THE APPEALS PROCESS

As stipulated by the legislation, the organization has five business days to permit or refuse access in full or in part. Suppose further time is requested, recognize the request’s receipt via written correspondence and specify an estimated date by which the agency may reply to the request. The documents can always be withheld if they do not adequately describe the agency’s records and are too vague in their manner.   The organization’s inability to meet with any of the time limits established by statute will represent a rejection of a request that can be challenged within 30 days to the official appointed by the agency to assess appeals and/or the chief executive or regulatory body of the agency.

If the requester does not obtain a decision of the appeal within ten business days, they are entitled to begin a proceeding to contest the denial of access. The appeal may be directed to the Department’s  Chief of  Fire Prevention, with a copy to the Department’s Bureau of Legal Affairs, except that if the notice,  order,  violation, or determination appealed from was issued by the Chief of Fire Prevention, the appeal shall be directed to the Fire Commissioner, with a copy to the Department’s Bureau of Legal Affairs.

All Freedom of Information Law (FOIL) requests to the New York City Fire Department should be submitted online.  On the same portal, questions may be posed for specific requests. Questions about specific requests should also be made through NYC OpenRecords using the Contact the Agency link available on every request page.

The simple truth is that if a FOIL request is brought to the notice of the request, no matter what the request, one must reply, and if records for perusal would be rejected, a valid reason must be furnished. Said reason must be immediately expressed to the requester.

The FDNY deals with several other incidents besides uniformed fire and EMS calls such as auto accidents, auto extrication, gas emergencies, entrapments, construction accidents, high angle rescues, trench rescues, confined space incidents, explosives, transit incidents, unstable buildings, or collapses, hazardous materials incidents, medical emergencies and many more. Most firefighters combine a tour and a 24-hour shift, followed by three days of leave. During one shift, each company is commanded by an officer (Lieutenant or Captain) and comprises one to five members for engine companies, one to five members for ladder companies, rescue companies, or squad companies, and one to six members for the hazardous materials company. Consequently, the FDNY has unique firefighting challenges in several ways, different from those of other agencies.

For information on serving legal papers, contact New York City Process Service, call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

Sources

1. The FDNY Fire Headquarters is located at 9 MetroTech Center in Downtown Brooklyn, while the FDNY Fire Academy is located on Randalls Island. The IAFF locals are 94 and 854

2. The current fire commissioner is Daniel A. Nigro, who followed Salvatore ‘Sal’ Cassano.

3. Tours can be either nighttime tours (6 p.m. – 9 a.m.) or daytime tours (9 a.m. – 6 p.m.).

4. For in-person record requests:

FDNY Public Records Unit
9 MetroTech Center- First Floor
Brooklyn, N.Y. 11201
Use the FLATBUSH AVENUE ENTRANCE
Hours of Operation:
Monday – Friday 9:00am to 4:00pm (except Holidays)

5. in accordance with the requirements of the New York Civil Practice Law and Rules

6. The so-ordered subpoena, together with the applicable subpoena fee, may be served on the Fire Department in-person to:

FDNY Bureau of Legal Affairs/CDLS Unit
9 MetroTech Center, 4th Floor
Brooklyn, New York 11201

7. Due to Coronavirus concerns, effective immediately, the Cure/Compliance Unit will no longer conduct in-person processing of Certificates of Correction at FDNY Headquarters.

Until further notice, one may request a review of Certificates of Corrections/Proofs of Corrections via regular mail or email. 

Submit the request via mail to:

Bureau of Legal Affairs

Administrative Enforcement Unit

9 MetroTech Center, 1st Floor

Brooklyn, New York 11201

Submit the request via email to:

Curedesk@fdny.nyc.gov

8. codified in the Public Officers Law Article 6, Sections 84-90.

9. The legal precedent of FOIL was established by the New York Court of Appeals in Westchester-Rockland Newspapers v. Kimball

10. FDNY Records Access Officer
FDNY Bureau of Legal Affairs – FOIL Unit
9 MetroTech Center
Brooklyn, NY 11201
Tel: (718) 999-0293

FDNY Records Appeals Officer
Records Appeals Officer
FDNY Bureau of Legal Affairs – FOIL Unit
9 MetroTech Center
Brooklyn, NY 11201
Tel: (718) 999-1669

11. Article 78 of the Civil Procedure Law and Regulations

12. submitted via NYC OpenRecords. Select the Fire Department of New York City (FDNY) from the agency dropdown menu.

13. Questions about specific requests should also be made through NYC OpenRecords by using the Contact the Agency link available on every request page

HOW TO SERVE THE NEW YORK POLICE DEPARTMENT

By Akanksha A. Panicker

The NYPD is among the oldest municipal police departments in the United States and has grown into one of the largest law enforcement agencies. The New York City Police Department (NYPD), officially the City of New York Police Department, is the primary law enforcement agency within New York.  The NYPD was created in 1845 and is responsible for performing various public safety, law enforcement, traffic management, counter-terrorism, and emergency response roles to further police the city.

The NYPD is divided into bureaus for different functions, including public order enforcement, investigations, and management via administration. The Police Department has  77 police districts known as patrol precincts, with patrol and detective officers encompassing all city areas. The department also has a dozen transit districts that police the subway. In furtherance of ensuring patrol overall public housing, nine police service areas have been appointed to patrol the housing developments. Further, such civilians in uniform work as traffic safety agents on the city’s streets and highways. The NYPD is also responsible for school safety agents required to safeguard the city’s public schools and the students who attend them. 

 [1.0] ABOUT THE NYPD

The Department sees its administration as helmed by the Police Commissioner, who, in turn, is appointed by the Mayor. The Commissioner ostensibly serves at the mayor’s discretion, although the term itself is specified to be five years.   The Commissioner is required to appoint their deputies, who are collectively considered part of the civilian cabinet. The office held is sworn into, and the oath renders the Commissioner and their deputies civilians rather than a sworn officer. However, a Commissioner who rises from the sword police ranks retains the same level of power and authority as an officer while serving in their mayor-appointed post. This affects their pension benefits and their ability to carry a concealed weapon without a permit. Some of the police commissioners are also armed personally, but their security details are full-time.

Commissioners and Deputy Commissioners are administrators who surpass the chief of department, and they are typically highly-skilled in areas like counterterrorism, support services, public information, legal matters, intelligence, and information technology. However, civilian administrators are forbidden from commanding police officers in a law enforcement situation (the Commissioner and the first deputy commissioner may control these situations). However, there are also different positions such as “grades,” which connote differences in duties, experience, and pay at the ranking hierarchy. Service in a supervisory capacity may only be open to members of the rank of sergeant and above.

The Chief of Police is the highest-ranking member of the NYPD. The Department is divided into twenty bureaus, typically commanded by a uniformed bureau chief (such as the chief of patrol and the chief of housing) or a civilian deputy commissioner (such as the Deputy Commissioner of Information Technology). The bureaus fit under four umbrellas: Patrol, Transit & Housing, Investigative, and Administrative. Bureaus are often subdivided into smaller divisions and unit

[2.0] FOIL REQUESTS ON THE POLICE DEPARTMENT

After the COVID-19 pandemic required the sanction of preventative measures against all institution, the Freedom of Information Law Unit of the Police Department is now accepting New York City Process Service requests for records on an appointment basis only The Freedom of Information Law (FOIL) pertains to the public’s right to gain access to government records. FOIL (Freedom of Information Law) requests can be made through the Department’s Legal Bureau.

Each city agency must adhere to the rules and regulations about the availability of records and procedures to be followed that they have agreed to in the New York Public officers law. Such records would usually include [A.]the times and places such records are available, [B.]the persons from whom such documents may be obtained, and [C.]the fees for copies of records (subject to some conditions). However, this is not an exhaustive list. The Freedom of Information Law requests to NY Public Officers may be submitted to examine records, which must be in writing and must include a detailed description of the sufficiently detailed records to enable a search to be conducted. Vaguely worded or too-broad requests for information do not comply with the FOIL requirements and cannot be sustained. 

The ensuing report. From the Officer should arise with that much-known information that would be possible without superseding the FOIL requirements. This would include the report’s type, the story’s date, where the occurrence transpired, etc. Arrest records upon request would need to comprise the person’s complete arrest number or name, date of birth, NYSID, and the date and precinct of the arrest. If records are divulged, the requester will be obligated to satisfy the necessary copying fees under statutory provisions.

Should the requester so prefer, the NYPD shall provide non-exempt responsive records by email rather than traditional mail sources. However, electronic documents that exceed the email server’s maximum storage capacity are sent to the email server and transferred onto an electronic medium (like a USB drive)  and may be physically mailed. 

Upon denial of a FOIL request, administrative appeals can be made to the FOIL Appeals Officer. 

[2.1] RECORD REQUESTS

The department’s Certificate of Conduct and Non-Criminal Fingerprint Section, Criminal Records Section, and Aided Unit provide different types of records or reports upon request. Some stories are only available online, while bids for Certificates of Conduct must be made in person at Police Headquarters. 

Since fingerprinting requires an in-person presence, fingerprinting services are still necessary to require an appointment physically.  However, to minimize the risk posed by the COVID-19 virus and limit the individual’s gathering, it is necessary to obtain a license before fingerprinting between the scheduled time. It is also necessary to maintain the correct set of documents to prevent rescheduling. 

All Certificates of Conduct will be mailed via United States Postal Service after the completion of processing. Processing and mailing should occur within ten (10) business days.

[2.2] CERTIFICATE OF CONDUCT AND NON-CRIMINAL FINGERPRINT SECTION

The individuals applying to obtain Certificates of Conduct and Non-Criminal fingerprints are usually required to comply with specific requirements and are obliged to obtain individual permits or licenses. The Certificate of Conduct was previously known as the  Good Conduct Certificates and functions as background checks that identify the individual requests’ criminal history within New York City’s five boroughs. 

To obtain a Certificate of Conductor of Non-Criminal fingerprint, the applicant must arrive at One Police Headquarters for fingerprinting and the accompanying photograph. Alongside the same, a USD 50 money order or certified cheque is payable to the New York City Police order as long as said money order is not international.  After the purchase of the card for Certificate of Conduct or Non-Criminal Fingerprint is completed, a one-dollar fee is applicable for additional non-criminal fingerprints on a card-wise basis.  

It must be noted that the service is not possible without photo identification. However, if all the relevant documents have been submitted, processing and mailing typically take approximately ten working days. It is necessary to have proof of citizenship along with the original copies of the documents first hand. A verification system wherein the Certificate of Conduct may be given after strict screening, no document photocopies, pictures of documents, or laminated copies will be accepted. All papers for services must be intact.

Non-Criminal Fingerprints may be required for specific permits or licenses obtained from the Certificate of Conduct and Non-Criminal Fingerprint Section.  It must be noted that merely because a non-criminal fingerprint is being obtained does not mean that a Background Check is included: the USD 25 fee applies only to the Fingerprinting.  The applicant must submit a money order or certified check (not international) payable to the New York City Police Department. 

[2.3] CRIMINAL RECORDS SECTION

The Criminal Records Section stores and maintains reports of crime and lost property and provides information from these files to members of the public and authorized agencies, as required by law and department rule.

Verification of Crime/Lost Property reports is provided by the Criminal Records Section, which stores and maintains crime and lost property reports and delivers information from these files to members of the public and authorized agencies, as required by law and department regulations. A request for a copy of the report may be submitted online or by mail and is available at any police precinct, Housing Bureau public service area, or Transit Bureau district. Messages can only be returned through the mail and are not available at Police Headquarters. Requests for Verification of Crime or Lost Property reports from complainants or victims, their authorized representative, or an authorized third party are completed free of charge.   However, these individuals must complete and submit a notarized authorization letter if they design an authorized representative. 

If mailed, the report must include two copies of the completed form along with a self-addressed stamped envelope. There is no fee associated with the Verification of Crime/ Lost Property report.    It must be noted that to find the sought record, all information requested must be furnished, particularly the complaint number and precinct of description (occurrence). Verification of the request cannot be made without this information.

Aided Records involve occurrences when a person is injured (not involving a motor vehicle) or becomes sick or lost, and the New York City Police Department renders service. Aided Records can only be obtained through the mail and are not available at Police Headquarters. 

The above documents are a small part of the NYPD’s responsibilities.  The NYPD has a broad array of specialized services, including the Emergency Service Unit, K9, harbor patrol, air support, bomb squad, counter-terrorism, criminal intelligence, anti-gang, anti-organized crime, narcotics, public transportation, and public housing. The NYPD Intelligence Division & Counter-Terrorism Bureau has officers stationed in eleven cities internationally. 

For information on New York City Process Service, call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

Sources

1. Terence Monahan is the 40th person to hold the position of chief inspector, and before 1986, this position was known as the chief of operations.

2. The number furnished [(646) 610-5296] should be called to schedule an appointment.

3. New York City Police Department’s Records Access Officer
Lt. Richard Mantellino
Legal Bureau – FOIL Unit
One Police Plaza, Room 110-C
New York, NY 10038
(646) 610-5296

The FOIL Unit is open Monday – Friday from 8:30 AM to 4:00 PM. The office is closed on all public holidays.

4. which shall not exceed twenty-five cents per photocopy not over nine inches by fourteen inches, or the actual cost of reproducing any other record by the provisions of paragraph (c) of this subdivision, except when a different fee is otherwise prescribed by statute.

5. All Freedom of Information Law (FOIL) requests to the New York City Police Department should be submitted via NYC OpenRecords (nyc.gov/openrecords). Select “New York City Police Department (NYPD)” from the agency drop-down menu.

6. by emailing a written appeal to FOILAPPEALS@nypd.org or mailing a written request to:

New York City Police Department’s Records Access Appeals Officer

Sgt. Jordan Mazur

Legal Bureau-Civil Section

One Police Plaza, Room 1406

New York, NY 10038

(646) 610-5400

7. In Lower Manhattan

8. To decrease the spread of illnesses, face masks must be worn inside the building. Applicants will be required to take a temperature reading upon entering the building. To allow for social distancing, it is disallowed to bring additional individuals’ appointments, unless necessary. It is further necessary to pass through two (2) security checks

9. 646-610-5541 from 7:00 am to 3:00 pm to schedule appointments.

10. Applicants must schedule an appointment for services.

11. NYPD Certificate of Conduct & Non-Criminal Fingerprint Section

One Police Plaza, Room 152-A

New York, NY 10038-1497

(646) 610-5541

Hours for processing 7:00am – 2:00pm Monday-Friday

Office hours are 7:00 am – 3:00 pm Monday- Friday.

12. Applicants are fingerprinted and photographed at One Police Headquarters, Room 152-A, Lower Manhattan.

13. Credit and bank debit cards are also accepted (Debit cards must have a Visa or Master Card logo). Credit or debit cardholders must be onsite at the time of payment.

14.A United States citizen is required to submit the following documents as proof of citizenship:

    • Valid US Passport, or;
    • Original U.S. birth certificate ALONG WITH a valid U.S. driver’s license with photo or DMV photo identification card, or IDNYC (New York City identification card) or;
    • Voter’s registration card ALONG WITH a valid driver’s license with photo or DMV photo identification card, or IDNYC (New York City identification card) or;
    • Certificate of Naturalization

15. A non-U.S. citizen is required to submit the following documents when applying for a Certificate of Conduct:

    • Valid passport or Alien Registration Card or Employment Authorization Card, or;
    • The current letter from the Department of Homeland Security (the United States Citizenship and Immigration Services) requests a Certificate of Conduct, local background check, or non-criminal fingerprints. The letter should indicate the applicant’s name, address, alien registration number, and current status in this country ALONG WITH a valid U.S. driver’s license with photo or Department Motor Vehicle photo identification card (issued in USA), or IDNYC (New York City identification card) or;
    • Current letter on letterhead from the applicant’s consulate or an attorney that contains the applicant’s full physical description (height, weight, hair color, eye color, etc.) and date of birth ALONG WITH a valid U.S. driver’s license with photo or Department Motor Vehicle photo identification card (issued in the USA) or IDNYC (New York City identification card).

16. Accepted types of documentation required for obtaining Non-Criminal Fingerprints are listed below:

  • Valid driver’s license with photo or DMV photo identification card (issued in the US) or IDNYC (New York City identification card) or valid Passport or Alien Registration Card or Employment Authorization Card or Certificate of Naturalization. 

17.NYPD / Criminal Records Section
One Police Plaza, Room 303
New York, NY 10038
(646) 610-5200
The Criminal Records Section is NOT open to the general public.
Operates Monday through Friday, 8:00 AM and 5:00 PM.

18. Also to be mailed to:

NYPD / Criminal Records Section
One Police Plaza, Room 303
New York, NY 10038
(646) 610-5200
The Criminal Records Section is NOT open to the general public.
Operates Monday through Friday, 8:00 AM and 5:00 PM.

HOW TO SERVE THE NEW YORK CITY TRANSIT AUTHORITY

New York Transit Authority

By Akanksha A Panicker

As a stage of development of the endeavor to create a shared corporate identity, the Metropolitan Transportation Authority in 1994 introduced a popular name bestowed upon each of its branches and affiliates. The New York City Transit Authority (NYCT) is now branded MTA New York City Transit (NYCT), (or precisely on the buses, MTA New York City Bus and MTA New York City Subway), although the former persists as its legal name for documents and contracts. Newer RFPs and deals have also used the more common term.

The Authority is referred to as NYCT or NYCT (for New York City Transit Authority), or simply the TA (for Transit Authority). New York City Transit Authority is a public corporation defined in Section 66 of the General Construction Law of the State of New York. It has designated the Secretary of the State as their agent to receive process service. 

The chairman and members of the MTA council, by law, also act as the chairman and members of the Transit Authority and operate as the directors of the Manhattan and Bronx Surface Transit Operating Authority.  The MTA executive director is an ex officio appointment to the Transit Authority’s post and does not require Senate confirmation.

The Transit Authority’s day-to-day activities are handled by its executive staff, who report to the agency’s president. 

[1.0] WHAT POWERS DO THE MTA HAVE AS A PUBLIC AUTHORITY 

The ‘MTA New York City Transit Authority (NYCTA)’ is neither a state nor local government entity. On March 1, 1968, the NYCTA and its subsidiary, the Manhattan and Bronx Surface Transit Operating Authority (MaBSTOA), were placed under the Metropolitan Transportation Authority (MTA). Consequently, the MTA has evolved in its capacity as a public benefit corporation: the quasi-private corporation status of New York public benefit corporations therein means that the board of directors as appointed by elected officials is the authority that can both publicly operated and privately operated systems. 

Being a public authority also means that the institution enjoys significant exemptions from state and local regulations. However, to a large extent, they tend to follow the model of government agencies.  

[2.0] RESPONSIBILITY OF THE SECRETARY OF STATE

All public corporations are entitled to have served upon them notice of claim as a condition precedent to an action’s commencement. However, these corporations did specifically require to have filed a certificate with the secretary of state. This certificate was imperative in designating the secretary as the agent for service of a notice of claim and additionally, provided the particulars that the secretary of the state would require to send the corporation future requests accurately as well as to store the information in the record, being the in such the name, post office address and electronic mail address, of an officer for the transmittal of notices of claim, served upon the secretary as the public corporation’s agent. 

It is necessary that any designated post office address or electronic mail address to which the secretary of state is has been sent. The notice of the claim would remain as such until formal intimation is provided that the corporation has changed its particulars. The Secretary of State should also be intimated as to the new address as well. 

The initial filing with the secretary of state shall also contain the applicable time limit for filing a notice of claim upon that public corporation. If later changed by statute, a new filing shall be made detailing the new time limit. Any public corporation that does not have a current and timely statutory designation filed with the secretary of state shall not be entitled to the portion of the fee to which it would otherwise be entitled from the Secretary of State for effectuating service. Failure of the public corporation to file with the secretary of state, however, will not invalidate any service of a notice of claim upon the public corporation which the secretary of state has received.

[2.1] REQUIREMENTS OF SERVICE

The General Construction Law definition of ‘public corporation’ includes municipal corporations, district corporations, and public benefit corporations.  It does not include publicly traded corporations.  Thus, the said corporation’s service would mean that Claim’s Notice would have to be furnished first and foremost. New York City Proces Service may easily accomplish this upon an authorized individual at the New York Department of State office. It is necessary to furnish two copies of the notice of claim. The fee for serving the Notice of Claim is USD 250.

The legal system’s bedrock principle that parties to litigation must be aware of legal proceedings brought against them. Recognizing that it can be difficult to serve natural persons personally, it is well settled that New York City process service can be obtained by methods other than personal hand delivery and still pass constitutional muster.

However, in light of the pandemic, personal delivery may be significantly more difficult to effectuate. While New York City process service is usually not accepted via mail, the requirements that the COVID-19 restrictions have put into place have since caused modifications to traditional acceptance of a notice of claim.  

To serve a Notice of Claim on the New York Secretary of State as a statutory agent of a public corporation, the Notice of Claim Server will be required to [A.] determine the identity of the public corporation intended to be served; [B.] complete the requisite cover sheet, [C.] file duplicate copies of the Notice of Claim with the Service of Process/Notice of Claim Cover Sheet and a copy of the first page of the filed Certificate of Designation for Service of Notice of Claim stapled to an authorized person at the New York Department of State’s office and finally [D.] pay the service fee of USD 250.

The New York Secretary of State is the statutory representative for public corporations who would have to be informed of the claim against them before any prosecution or action against the organization. The Notice of Claim must specify the proper entity (corporation, LLC, government agency) putting the claim, especially considering that the Notice of Claim server, not the DOS, is responsible for serving the public corporation and identifying whether it was the intended target.

A Notice of Claim New York City Process Service should provide DOS with the name of the public corporation whose claims DOS is attempting to process and can thereinafter ask DOS to review its database for a public corporation whose name matches that of the one be served. On the other hand, DOS can supply the Notice of Claim server with a registry of public entities of which the name submitted in the lawsuit is identical to, or the same as, the full name of the corporate defendant. It is also the duty of the Notice of Claim server to decide the public corporation that has been served corresponds to the list. Note, public corporations that have not filed a Certificate of Designation for Service of Notices of Claim will not be included on the list but may still be served upon the Secretary of State.

The document’s service must also be rendered on a public company that has not filed a Certificate of Designation for Service of Notices of Demand. If the real name of the public company expected to be served varies from the name given in the Notice of Claim, it will not be identified on DOS’s search result list.

[2.2] CONDITIONS THAT NEED TO BE FULFILLED

Process Service of a notice of claim requires both the duplicate copy and the statutory fee as a vouchsafe by the server. They imply that the documents are replica exact copies of the Claim’s original Notice, responsible for accuracy and verification, becoming the server’s responsibility. Since the influx of documents to the DOS is so heavy, it is impossible to accurately and exhaustively review every single claim put forth to it. However, the DOS still has the responsibility to ascertain that the notices received are actually duplicates of each other. If the Notice of Claim copies is not duplicated, the service should be dismissed immediately.  The service is invalid even if the DOS overlooks the inconsistency since the incorrect service directly abridges the laws it has been set under.

For service upon a public corporation that has filed a Certificate of Designation for Service of Notice of Claim, DOS delivers a singular copy to the party presented on the Notice of Claim. When the server submits a claim, the  DOS is obliged to send the corporation’s request identified on the form. It must be reiterated that if the claims are raised against the wrongly-identified public corporation according to the DOS list, the intended recipient will not receive the DOS mailing. Service being provided is ineffective when referred to the public corporation that it is intended service being provided is inadequate when referred to the public corporation that it is intended for.

Regarding service on a public corporation that has not filed a Certificate of Designation for Service of Notice of Claim, DOS does not send a copy of Claim’s Notice to the public corporation served.

Throughout the procedure laid down, the Notice of Claim server must provide DOS with a clear and unequivocal indication of the identity of the public corporation to be served.

All is not inescapable bureaucratic rigidity in service. The MTA is responsible for developing and implementing a unified mass transportation policy for the New York metropolitan area. Serving this capacity for public benefit means that the  DOS will not reject service of process upon a public corporation solely because the entity named on the service form does not match the entity name as it appears on the record of the Notice of Claim cover sheet. 

However, this would mean that the DOS accepts the service precisely. It is identified and issues a receipt that would follow through with the documents under the Service of Process/Notice of Claim Cover Sheet and send the process exactly to those corporations who have been identified.  Furthermore, State records would reflect that the service was made on the public corporation recognized on the Service of Process/Notice of Claim Cover Sheet. This laid down procedure is applicable even if the entity served is not the same as the corporation or even if the name of the public corporation specified differs in any way from the name of the public corporation as defined in the Notice of Claim.

For information on New York City Process Serviceor call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

Sources

1. The NYCTA operates the following systems:

  1. New York City Subway, a rapid transit system in Manhattan, the Bronx, Brooklyn, and Queens.
  2. Staten Island Railway, a rapid transit line on Staten Island (operated by the subsidiary Staten Island Rapid Transit Operating Authority)
  3. New York City Bus, an extensive bus network serving all five boroughs, managed by MTA Regional Bus Operations.

2.New York Consolidated Laws, General Construction Law – GCN § 66. Definitions

A ‘public corporation’ includes a municipal corporation, a district corporation, or a public benefit corporation.

3. The NYC Transit presidency is empty as of Feb 21, 2020, after its last president’s resignation.

4. Inclusive of  person, or designee, nominee, or other agent-in-fact

5. In addition to the other methods prescribed by law, a notice of claim against a public corporation may be served on the New York Secretary of State as the public corporation’s statutory agent under Section 53 of the General Municipal Law.

6. One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231. Two

7. brought to the Customer Service Counter located on the 6th Floor. The Customer Service Counter is open 9:00 a.m. to 4:30 p.m

instead of serving a notice of claim upon a public corporation as provided for in section fifty-e of this article, a notice of claim setting forth the same information as required by such area may be served upon the secretary of state in the same manner as if done with the public corporation. All the requirements relating to the form, content, time limitations, exceptions, extensions, and any other procedural requirements imposed in such section concerning a notice of claim served upon a public corporation shall correspondingly apply to a statement of claim acted upon the secretary of state as permitted by this section. For purposes of this article, the secretary of state shall be deemed to be the agent for all public corporations upon whom a notice of claim may be served before commencement of any action or proceeding subject to this article’s requirements.

DECONSTRUCTING THE FILIBUSTER

Capitol Hill

By Akanksha A. Panicker

A filibuster is a parliamentary procedure that essentially blocks a measure from being brought to a vote, most commonly being used in an attempt to delay a bill or even stop it altogether by prolonging debate on it. The filibuster method is used in the U.S. Senate to keep an account from having a vote. The Senate filibuster is a traditional legislative pause method where one or more senators try to block a bill from voting by extending the proposal’s discussion. The Senate rules authorize a senator, or a sequence of senators, to talk for as long as required or desired, on just about any issue they prefer, until ‘three-fifths of the Senators duly chosen and sworn’ (currently sixty out of 100) agree to end the debate by triggering cloture under Senate Rule XXII(22).

The Senate cloture rule, which needs sixty votes to approve most bills, is a  formidable challenge for any new president’s legislative agenda. Opinions from both sides have lobbied for changes in the midst of partisan gridlock, and the filibuster has often been central in this battle. 

[1.0] BACKGROUND

The opportunity to discuss a bill indefinitely and thereby stop a measure from progress was a by-product of a rule reform in 1806 and was seldom used until the 20th century. In 1970, the Senate modified the previous ‘two-track’ method to prevent indiscriminate use of the filibuster from impeding Senate business. The minority felt safer threatening filibusters more often, and as a result, sixty votes rather than forty-one became the standard needed to avoid discourse on virtually any contentious topic. As a result, the contemporary Senate has been a sixty-vote legislature, a surprising extant standard for authorizing legislation or matters.

Efforts to restrict the tradition include legislation that renders it disallowed to discuss the Senate for more than a given amount of time, such as the Congressional Budget and Impoundment Control Act of 1974. In 2013 and 2017, the Senate reduced the threshold of achievement for triggering cloture to a simple majority, but most legislature requires sixty votes.

One or more senators may occasionally hold the floor for an extended period, sometimes without the Senate leadership’s advance knowledge. However, these ‘filibusters’ usually result only in brief delays. They do not determine outcomes since the Senate’s ability to act ultimately depends upon whether there are sufficient votes to invoke cloture and proceed to a final vote on passage. However, such brief delays can be politically relevant when exercised shortly before a major deadline (such as avoiding a government shutdown) or before a Senate recess. 

[1.2] HISTORY

Using the filibuster to delay or block legislative action has a long history. The term filibuster originated from a Dutch word for pirate. The name rose to popularity in the 1850s when applied to efforts to hold the Senate floor to prevent a vote on a bill.

It was only recently that the filibuster became an option for Senators alone. In the formative days of the Congress, both delegates and senators could become involved in a filibuster. However, when the House of Representatives included more members, the revision of the House’s laws contributed to the restricting of debate. The Senate continued discussing whether the tiny Senate should allow unrestricted discussion on any topic and whether any senator should also have the freedom to talk as long as possible on every issue.

By 1917, the Senate introduced legislation (Rule 22) relying upon President Woodrow Wilson’s support to bring an end to the debate with a two-thirds majority vote. Thus, this legislation birthed the cloture rule, the use of which was at its most historically significant when the Senate called for cloture to end the filibuster against the Treaty of Versailles. Even with the revised cloture law, filibusters remained an important way of blocking bills, as it is arduous to achieve a two-thirds majority in Senate voting.  For the next five decades, the Senate has periodically attempted to use cloture but has typically struggled to win the requisite two-thirds of the vote. Filibusters became especially beneficial to Southern senators who tried to block equal rights measures, including anti-lynching legislation, until, after a sixty-day filibuster against the Civil Rights Act of 1964, the closure was invoked. In 1975, the Senate lowered the number of votes needed to be closed from two-thirds to three-fifths, or sixty of the existing hundred senators. In 1979 and 1986, the Senate further limited debate once the Senate had imposed cloture on the pending business.

Consequentially, the discussion will only be suspended on specific Senate topics if at least sixty senators accept it. This rule is not uniformly accurate, however. Although the Senate laws now need only a simple majority to enact the law ultimately, some procedural measures along the way require a supermajority of sixty votes to conclude the discussion on the legislation. 

[2.0] PROCEDURE FOR THE FILIBUSTER

Senators possess two alternatives when the time comes to cast a vote on a measure or resolution. Quite commonly, the majority leader (or another senator) requests ‘unanimous consent,’ addressing a hundred senators to identify if any one of the objects to the debate’s conclusion and a vote. If no objection has been raised, the Senate shall proceed to an option. When the majority leader cannot gain all hundred senators’ consent, the Senator who brought forth the motion for conclusion typically considers a cloture motion, which then allows Sixty votes to be taken. If less than sixty senators, the chamber’s supermajority, favor cloture, that’s when the filibuster is said to have occurred.

The extended debate is only one technique for delaying legislative action. A filibuster could also allow for [A.]anonymous holds that would allow senators to block bills or nominations that require unanimous consent of senators to be voted on [B.] continual introduction of amendments with filibustering senators reading each amendment in full, rather than waiving the right to do so, as is customary to take up time, [C. ]  lengthy roll-call votes on each amendment and other issues, using up time, [D.] quorum calls, which ascertain the number of senators present, used to delays and forced senators to return to chamber and [E.] delay of the bill’s final passage for up to two weeks even after cloture is passed. 

[2.1] EXCEPTIONS TO THE FILIBUSTER

The function of the Senate currently entails the submission of cloture motions; there are few significant exceptions. The most notable among these include promotions to executive offices and federal judgeships. Due to two constitutional amendments introduced in 2013 2017, only a simple majority is needed to complete the discussion. The second covers specific policy categories on which the Congress has hitherto adopted special procedures penned in the statute itself that restrict the time for discussion. There is no real reason to invoke cloture to circumvent the debate as there is a set period of time for discussion in these situations. Special budget laws, known as the budget reconciliation process,  are most commonly thought of when considering this self-timed legislation debated. These budget processes mandate a clear majority to pass such bills concerning entitlement expenditure and revenue requirements, thus preventing the filibuster from occurring in the first instance. 

Additionally, Congress has periodically provided a  supposed ‘fast track’ authority for the President to negotiate international trade agreements. After the President submits a deal, Congress can then approve or deny the agreement but cannot amend it nor filibuster.

[3.0] CONSEQUENCES AND PROCEDURE IN THE EVENT OF ELIMINATING THE FILIBUSTER

Indeed, the most direct approach to abolishing the filibuster would be to officially modify the text of Rule 22 of the Senate since it exists as the sanctioning cloture rule responsible for the mandate of sixty votes to conclude the parliamentary debate. However, a major issue with amending Rule 22 is that shelving the debate on a motion to amend the Senate’s standing rules cannot move forward without the approval of two-thirds of the Senate members in their full legislature capacity ( being present and voting). In the absence of a broad, bipartisan Senate majority favoring a restriction in the right to debate, a formal amendment to Rule 22 is exceedingly dubious, although the most comfortable way forward on paper.

The development of a new Senate precedent to ban the filibuster will likely be a more grueling journey. In addition to its formal guidelines, the Chamber’s precedents give further insight into how and why the rules have been implemented in different ways. Crucially, in certain cases, that solution to eliminating the filibuster- colloquially recognized as the ‘nuclear option’ but more formally classified as the ‘reform by the ruling’- can only be deployed by using the help of a simple majority of senators.

The nuclear choice integrates the premise that a new precedent may be set by a senator introducing a point of order or arguing that a Senate law is being abrogated in its effect. Upon approval by the president officer (usually a member of the Senate), the vote sets a new precedent. If the president officer disagrees, their decision may also be d challenged. If the majority of the Senate votes to revoke the Chair’s decision, the reverse of the Chair’s decision will become a new precedent.

In a procedural twist, the Senate used this approach in 2013 and 2017 to reduce the number of votes needed to debate nominations.  Through an ingenious use of the point of order system, the majority leader put forth the nominations via non-debatable motions. However, they thereinafter vocalized the point of order, citing that the cloture vote needed the majority vote that violated the principle of the non-debatable movements. The presiding officer ruled against the end of the charge, but the ruling was overturned on appeal. Interestingly, the request that overturned the ruling also required only a majority in support. The parliamentary procedure can thereinafter be used in a manner to phase out the filibuster procedure. 

[3.1] REDUCING THE EFFECTIVENESS OF THE FILIBUSTER

The Senate could still try to undermine the filibuster before wholly banning it. A Senate majority may trigger a less-radical version of the nuclear plan that prohibits filibusters on individual motions but otherwise retains the sixty-voting law unaffected. A majority in the Senate might prohibit senators from filibustering a motion responsible for a  bill to commence (known as the motion to proceed).  Hence, senators’ ability to filibuster the new account or amendment will be retained while essentially shutting out the supermajority hurdle for beginning a vote on a statutory proposal.

The principle of supermajority has made it extremely difficult, frequently inconceivable, for Congress to implement anything but the least contentious bills in recent years. The quantum of bills approved by the Senate has significantly plummeted. Meanwhile, voter acceptance of Congress as an entity has nosedived, with major components of the community viewing the institution as ineffective. Changing majorities of both parties and their supporters have also been unsuccessful in achieving core legislative goals expressed in electoral campaigns since these goals cannot be realized after the election. An example that most clearly highlights the situation was when the Democratic Party, despite their substantial majority in the 111th Congress, still had to withdraw the Affordable Care Act’s ‘public option’ clause because senator-Joe Lieberman of Connecticut had threatened to filibuster the bill if it stayed.

There is also no objective formula to quantify the extent to which the filibuster is still employed through the years. Senators are not allowed to officially register their opposition to the conclusion of the debate until a cloture resolution is finally put to the ballot. If Senate leaders recognize that at least 41 senators expect to reject a cloture vote on a particular bill or motion, they frequently opt not to schedule it for debate on the floor. But the number of cloture movements filed is a convenient metric for the calculation of filibusters. The number of such activities has risen dramatically in the 20th and 21st centuries after the popularisation of the filibuster’s second life.

For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers by clicking here.

Sources

1. At times, the ‘nuclear option’ has been proposed to eliminate the sixty vote threshold for certain matters before the Senate. The nuclear option is a parliamentary procedure that allows the Senate to override one of its standing rules, including the sixty-vote rule to close debate, by a simple majority (51 votes if all 100 senators are present) than the two-thirds supermajority typically required to amend the controls.

2. On November 21, 2013, by overturning a ruling of the chair on appeal, the Senate set a precedent that lowered the vote threshold required by Senate Standing Rule XXII for invoking cloture on most presidential nominations. The precedent did not change the text of Rule XXII of the Standing Rules; instead, the Senate established a precedent reinterpreting the provisions of Rule XXII to require only a simple majority of those voting, rather than three-fifths of the full Senate, to invoke cloture on all presidential nominations except those to the U.S. Supreme Court.

3. “Vote on S. Con. Res. 3, 115th Congress”. U.S. Senate.

The Senate passed the FY17 budget resolution that included reconciliation instructions for health care reform by a 51–48 vote on January 12, 2017, and by the House on a 227–198 option the following day. The House later passed the American Health Care Act of 2017 as the FY17 budget reconciliation bill by a vote of 217–213 on May 4, 2017

4. Budget reconciliation is a procedure created in 1974 as part of the congressional budget process. In brief, the annual budget process begins with adopting a budget resolution (passed by a simple majority in each house, not signed by the President, does not carry the force of law) that sets overall funding levels for the government. The Senate may then consider a budget reconciliation bill, not subject to filibuster, that reconciles funding amounts in any annual appropriations bills with the amounts specified in the budget resolution. However, under the Byrd rule, no non-budgetary ‘extraneous matter’ may be considered in a reconciliation bill. The presiding officer, always relying (as of 2017) on the Senate parliamentarian’s opinion, determines whether an item is extraneous, and a sixty-vote majority is required to include such material in a reconciliation bill.

5. Beginning in 1975 with the Trade Act of 1974, and later through the Trade Act of 2002 and the Trade Preferences Extension Act of 2015,

6. The Senate’s Standing Rules are the parliamentary procedures adopted by the United States Senate that govern its operation. The Senate’s power to establish rules derives from Article One, Section 5 of the United States Constitution: ‘Each House may determine the management of its proceedings…

7. At the 85th Congress in 1957-59, more than 25 percent of all bills proposed by the Senate were eventually enacted; by 2005, the number had fallen to 12.5 percent, and by 2010, only 2.8 percent of the bills introduced became law—a 90 percent decline from the previous 50 years

INSTRUCTIONS FOR FILING A LEGAL ACTION AGAINST NEW YORK

Supreme Court

By: Akanksha A. Panicker

Negligence by government agencies can lead to many injuries suffered by the victim. Consequently, suing a government agency provides the individuals who have suffered harm to be recompensed by the overseeing department. However, the procedure to institute this suit requires a significant amount of legal backing, and frivolous claims are seldom entertained. In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit. The United States as a sovereign is immune from suit unless it unequivocally consents to be sued.

The concept of ‘sovereign immunity‘ additionally also prevents the city and state of New York from being sued unless they consent. Consent is easily obtained, although it must be accepted on a case-wise basis and under notice provided by the victim or their representatives. Failure to file the documents appropriately means that the government entity is well within its rights to disregard the suffered damages.

Once the Notice of Claim is filed, the city will request a hearing in which the accident victim will be required to testify under oath. Only then would the individual be able to sue the city.

[1.0] HOW TO SERVE NEW YORK CITY

When attempting to sue a Municipality or Government Agency, one must be aware of the concept of sovereign immunity. A city, county, the State of New York, or other government agencies cannot be sued unless they consent to the suit being instituted. The requirement in New York is the filing of a Notice of Claim.

A Notice of Claim must be filed within a specific period of time, or the lawsuit cannot be filed at all. Customarily that time period is 90 days. The New York City Comptroller’s office is responsible for monitoring the settlement of claims against the city. Where a request is made, the Comptroller’s Office is required to review the same. The Comptroller’s Office will extend a mediation offer or an offer for settlement if they consider it apt based on the investigation results.

A precondition to holding the City liable for injuries that arise from potentially hazardous circumstances is noticed, as laid down by New York law. A notice of claim must be properly served within 90 days from the date of occurrence of the injury. On the office of the Comptroller, service is required to be via [A.] electronically via the claim system, [B.] personal delivery, or [C.] registered or certified mail. A notice of claim must be filed in writing.

[1.1] REQUIREMENTS OF A NOTICE OF CLAIM

A Notice of Claim must have [A.] the name and address of both the party filing the claim and the attorney representing them, [B.] details and the nature of the request, [C.] nature of the injuries, [D.] damages sought. It is necessary for the Notice of the claim to be sworn to and attested in a verification process. Since Claim’s Notice serves as the first notice that the municipality or the City would know about, it is necessary to furnish them with full and sufficient facts of the case.

If a notice of claim is required to be filed against the City of New York, it is vital to ensure that this Notice has been provided to the right municipality or agency. This is because the filing of the claim in an agency that is no qualified to hear and return said notice will render it void, often leaving the claimant without remedy. Especially since Notice of Claim is time-bound, it is necessary to ensure that the ninety-day period for filing has not run its course. It is very seldom that a Court permits the filing of a late Notice of claim.

Filing a claim within the notice period is not the same as complying with the Statute of Limitations. The Statute of Limitations is an explicit timeframe within which a lawsuit must be filed. However, the Statute of Limitations only comes into play once the minimum requirements for filing a Notice of Claim have been reached.

[2.0] HOW TO SUE THE STATE OF NEW YORK

Suing the state of New York means that the suit must be brought in the New York State Court of Claims to get damages. Of course, there are certain exceptions in public authorities. Furthermore, the court does not have jurisdiction over individuals, whether they are in the State’s employ. If a state agency is at fault, the suit should not be against the particular agency but, rather, against the State of New York.

Individual public bodies with a distinct legal status and identities are considered to be sued via their nature as state entities. Still, they can also be prosecuted under their own names. A portion of these public authorities are not charged in the Court of Claims, but in State Supreme Court, under the provisions of their local codes: the Public Authorities Law of the General Municipal Law. The statute defines the particular area where the agency may be sued; the Court of Claims or the State Supreme Court. Municipal governments are prosecuted under the General Municipal Law.

The Court of Claims does not have authority over claims against county jails, detention institutions, or the charges of carelessly servicing county roads. Furthermore, in addition to the Attorney General, the New York State Thruway Board, the New York City University of New York, and the New York State Power Authority will also require the particular defendant to be served.

Like for the city, most claims against the State require action to be taken within a very narrow framework. Common between suits against the State as heard in the Court of Claims or against a local government as heard in the State Supreme Court is the notice period for undertaken actions. This period usually lasts 90 days.

[2.1] SERVING NEW YORK STATE

It is also important to prepare a claim to sue in the Court of Claims. This claim must be filed with the court clerk and also served on the New York State Attorney General. As usual, a personal delivery service is preferred, although a certified mail return receipt is also acceptable. However, post COVID-19 concerns, service requirements have also changed.

A USD 50 fee is required when filing a Claim. It is important to bear in mind that the Claim can only be deemed filed when it is actually received by the Clerk of the Court or the Chief Clerk. The claim can be filed by personally delivering it, by regular mail, and even by fax.

For certain cases, lawsuits may be filed even after three years of accrual of the right to claim, although some claims can only be filed within one year of right accrual. Personal and property injury incidents require claims to be filed within 90 days. For wrongful death, the statute of limitations for litigation is ninety days from the appointment of an executor or administrator of the estate of the deceased but not outside two years after the demines. Breach of contract requires a six-month statute of limitations. A person’s condition or disability can extend the time limit to two years after it ends. Additionally, The suit must be started within one year and 90 days of the injury. This applies to all the city’s agencies.

The Claim contains vital details about when and how the claim occurred, and the harm documentation should be included to understand the damages claimed.    It must provide the State with ample notice and must assert evidence sufficient to state an argument. If it cannot furnish the same, the case may be thrown out.

When a prospective claimant issues a Notice of Intent to File a Claim, it will extend the filing of their claim as well as the service to at least one year from the date the claim was incurred. The Notice of Intention document must be served upon the Attorney General, and where the defendant is a non-State of New York entity, the form is must also be done on the non-state entity.

When a claim is not filed appropriately, one may file a motion asking to later file the request. If an individual pleads and files the Notice of Intention but refuses to comply with the service requirements or filing a lawsuit, they may make a motion to treat the Notice of Intention as a claim.  The state of New York has a variety of divisions, departments, agencies, and commissions. Just because an entity has ‘New York State’ in its title does not mean that it is part of the state; it may be a public corporation with its own status.

[3.0] SERVING THE UNITED STATES AND ITS AGENCIES, CORPORATIONS, OFFICERS, OR EMPLOYEES.

To serve the United States, a party must deliver a copy of the summons and the complaint to the United States attorney. This attorney is specific to the district where the action is brought and is an imperative part of the process. However, service may be made upon an assistant United States attorney or clerical employee whom the United States attorney designates in writing filed with the court clerk.

Service by registered and certified mail may also be done. A copy of the summons and complaint should be sent either to the [A.] civil-process clerk at the United States attorney’s office or [B.] to the Attorney General of the United States at Washington, D.C. Additionally, if the action challenges an order of a non-party agency or officer of the United States, a copy of the summons and complaint should be sent by registered or certified mail to the agency or officer.

It must be noted that service upon a United States agency or corporation would require assistance upon the United States and a copy of the summons and complaint to the agency, corporation, officer, or employee. In fact, an officer or an employee of the United States can be sued in an individual capacity for an act or omission that occurred in conjunction with duties performed on behalf of the United States, as long as the United States has also been served. For the above provisions, service must be done through registered or certified mail.

[3.1] FEDERAL TORT CLAIMS ACT

A federal employee’s negligent action can lead to a lot of worry for the injured individual and their family. The Federal Tort Claims Act (FTCA) provides individuals the right to file a claim for the damage that they have incurred. Since citizens have often not been able to sue their state under the umbrella of sovereign immunity, the FTCA constitutes a limited waiver of sovereign immunity, permitting citizens to pursue some tort claims against the government.

An FTCA claim must be against a federal employee, not an independent contractor. This would provide a restriction on who can be sued since a prerequisite for this is a requirement for the negligent conduct conducted during the federal employee’s time holding the office. It has been customary for claims of negligence rather than willful misconduct to be allowed under the FTCA. An exemption to this occurs when a federal law enforcement official has perpetrated the wrongdoing.

It is necessary to file a Notice of Claim with the federal agency responsible for the injury before instituting a claim against the government insofar as a Notice of Claim acts as preliminary information communicated to seek restitution government. For a federal lawsuit, Standard Form 95 must produce knowledge about themselves and the unfortunate circumstances that they have suffered. Furthermore, the damages sought must be provided in a manner that quantifies the same in monetary values. While Standard Form 95 is not mandatory, it streamlines the process of submitting the claim for approval.

Suing the city, the state of a country seems like a daunting task on the face of it. While it is more complicated than suing a private citizen, suing the government follows a structure that has been laid down through several statutes. It is discouraging when the lawsuits are subject to a lengthy and sometimes confusing list of limitations. Yet, a case can be instituted with relative ease as long as the claim requirements have been satisfied.

For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers by clicking here.

Sources

1. The United States Supreme Court in Price v. the United States observed: “It is an axiom of our jurisprudence. The government is not liable to suit unless it consents thereto, and its liability in a suit cannot be extended beyond the plain language of the statute authorizing it.

2. Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, more vital rule as regards foreign courts is named state immunity.

3. Tort claims against some Authorities should not be served on the Comptroller’s Office and must be done on the Authority or its designated agent:

 

  1. New York City Transit Authority (NYCTA)
  2. New York City Housing Authority (NYCHA)
  3. Triboro Bridge & Tunnel Authority
  4. Port Authority of NY and NJ
  5. Manhattan, Bronx Surface Transit Operating Authority (MABSTOA)
  6. New York City School Construction Authority
  7. New York City Health + Hospitals (HH)
  8. Staten Island Rapid Transit Authority
  9. MTA Bus Company (MTABC)
  10. Metropolitan Transportation Authority (MTA)
  11. Hugh L. Carey Battery Park City Authority

4. New York City Administrative Code 7-201(c)(2)

No civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any street…[or] sidewalk…being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice, or where there was the previous injury to person or property as a result of the existence of the defective, unsafe, dangerous or obstructed condition, and written notice thereof was given to a city agency, or there was written acknowledgment from the city of the defective, unsafe, dangerous or obstructed condition. There was a failure or neglect within fifteen days after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or the place otherwise made reasonably safe.’

5. Under the New York State General Municipal Law § 50-e

6. New York Consolidated Laws, Public Authorities Law – PBA § 1317. Actions against the authority

As a condition to the consent of the state to such suits against the police, in every battle against the law for damages, for injuries to real or personal property or the destruction thereof, or personal injuries or death, the complaint shall contain an allegation that at least thirty days have elapsed since the demand, claim or claims upon which such action is founded were presented to a member of the authority or other officer designated for such purpose and the administration has neglected or refused to make an adjustment or payment thereof.

7. NY Gen Mun L § 119-O (2015)

8. How to serve the attorney general: Consistent to maintain social distancing for the health and safety of the public and employees of the OAG, the OAG is encouraging parties to effect personal service by mail through the procedure outlined in CPLR 312-a.

See: Notice for Personal Service New York State Attorney General, https://ag.ny.gov/service-oag.  

9. Inclusive of a United States officer or employee sued only in an official capacity.

10. Federal Rules of Civil  Procedure, Rule 4. Summons

11. All existing, pending, and threatened litigation, as well as unasserted claims, should be reported by the Department of Justice and all other government agencies using their respective appropriate formats

12. The Federal Tort Claims Act (August 2, 1946, ch.646, Title IV, 60 Stat. 812, 28 U.S.C. Part VI, Chapter 171 and 28 U.S.C. § 1346) (‘FTCA’) is a 1946 federal statute that permits private parties to sue the United States in a federal court for most torts committed by persons acting on behalf of the United States.

 

HOW TO SERVE NEW YORK CITY DEPARTMENT OF EDUCATION

New York City Department of Education

By Akanksha A. Panicker

The New York City Department of Education in the New York City government’s division regulates the public education system. The New York City School District is the biggest education system in the U.S., with approximately 1.1 million pupils taught in over a thousand different classrooms. It also has a yearly budget of about 34 billion dollars, spanning all five New York City boroughs.

The New York State legislature established the New York City Board of Education in 1842. From the latter part of the 60s, the district grouping was instituted for courts. Elementary schools and middle schools were grouped into 32 community school districts, and high schools were grouped into five geographically larger districts: one each for Manhattan, the Bronx, and Queens, one for most of Brooklyn, and one, BASIS, for the rest of Brooklyn and all of Staten Island. Also, there were several special districts for alternative schools and schools serving severely disabled students.

 The Panel manages the agency on Educational Policy and New York City Schools Chancellor. The Panel for Educational Policy of the Department of Education of the City School District of the City of New York is also called the New York City Board of Education. It exists as the governing body of the New York City Department of Education.  The members of the board are appointed by the mayor and by the five borough presidents.

Much of New York City falls under NYCDOE control except for a tiny portion of the Bronx, which is under Pelham Public Schools’ jurisdiction.
 

[1.0] SERVICE OF PROCESS AND THE CHANGE DUE TO COVID-19 

The Department of Education has slightly complicated service of process procedures. Owing to Governor Cuomo’s Executive Order continuing temporary suspension and modification of laws relating to the disaster emergency, the Department of Education temporarily disabled in-person service.  Instead, the Department has created a dedicated email account wherein they collect subpoenas and permission requests. 

The DOE only accepts regular subpoenas, authorizations, or other records in a highly narrow frame. Service of procedure for judicial papers must be rendered to the New York City Law Department’s administration.

The DOE examines each paper submitted to decide whether or not the DOE can authorize service on behalf of the department. If accepted, the DOE will contact the individual via email. However,  any additional queries at the address specified are answered promptly.

[2.0]LEGAL OFFICES AT THE DOE

[2.1] OFFICE OF THE GENERAL COUNSEL

The Department of Education Organization Act set up an Office of the General Counsel (OGC), commanded by a General Counsel who has been designated by the President and approved by the Senate. The Office has espoused the extensive legislative mission to “provide legal assistance to the Secretary concerning the Department’s programs and policies.” The General Counsel’s statutory obligation to supply legal assistance is not restricted to the Secretary alone but rather applies to all other officers and staff of the Department, since they accompany the Secretary by fulfilling the Department’s duties. In addition to offering legal aid and conducting legal tasks, including the procurement of legal counsel, litigation, and statutory facilities, OGC is responsible for performing some law-related management functions, including overseeing the Department’s ethics program as well as the clearance of its administrative records.

The Office of the General Counsel advises the New York City Department of Education on all legal concerns, such as labor and wages, equal opportunity, remuneration policies, compliance, and special education procedures, and administrative/state/federal regulation. 

Practice Areas

The Department of Education has counsel based in the five boroughs and five major areas of practice to represent the Chancellor and staff who administer and assist the City’s pupils. OGC acts as a full-service labor and employment practice, ensuring students’ welfare, faculty, and integrity of the by-laws and instruction that the DoE is responsible for. 

OGC lawyers provide instruction and advice on the mandatory reporting framework, civil rights rules, arbitration processes, and inquiries into the discipline and defend the DOE in administrative proceedings. OGC addresses complaints of harassment of staff, including verbal and physical violence, sexism, and physical misconduct. If problematic behavior is substantiated, legal counsel pursues disciplinary action.

The OGC provides representation and counsel to the DOE to guarantee that schools focus on providing special needs children with a free and adequate education. (FAPE). School managers and employees are trained regarding special needs children’s interests, and the OGC acts as an unbiased hearing officer in Special Education proceedings.

OGC and its units offer direct counsel and guidance for DOE in lawsuits, including appeals. Consequently, OGC is experienced in writing commercial contracts, administrative rules, and laws and may guide Education Law problems. This organization frequently reacts to calls for information from the general public and media through the Freedom of Information Statute. The Freedom of Information Act (FOIA) allows people access to public documents and information. Both FOIL demands must arrive with a written form. No-specific form or format is needed. FOIL demands may be made by mail, email, or through the open records website. 

An interdisciplinary team of trained auditors and regulatory officers must also guarantee that the DOE retains an appropriate degree of fiscal discipline and compliance with federal and state regulations.

[2.2] SERVICE OF PROCESS: LAW DEPARTMENT

New York City Law Department is responsible for collaboratively providing the City with legal representation. The Law Department represents the City, the Mayor, other elected officials, and the City’s many agencies in all affirmative and defensive civil litigation, as well as juvenile delinquency proceedings brought in Family Court and Administrative Code enforcement proceedings brought in Criminal Court.

Law Department attorneys draft and review local and State legislation, real estate leases, procurement contracts, and financial instruments to sell municipal bonds. The Law Department also provides legal counsel to City officials on a wide range of immigration, education, and environmental policy issues. There is rarely a major City initiative that is not molded by the Law Department’s staff.

To file against the city and state of New York, different requirements must be fulfilled. 

To begin an action against New York City or one of its agencies or departments, notice is absolutely imperative to be provided.  The City mandates notice of an injury or a claim to be made within ninety days of the occurrence, whereinafter the individual will receive a notice of claim.  The service window for service of process on the Law department was instituted on Tuesday, June 23, 2020. It must be noted that the Law Department accepts service for summonses and documents that the Department of Education is unable to accept. 

 The service window has been open to accepting service solely on Tuesdays and Thursdays from 9:00 am to 5:00 pm. An email address remains available where the Law Department continues to accept service temporarily. It must be understood that the service of process that is temporarily accepted via this method only for the City of New York and entities for which the Law Department is authorized to accept service. Service of process on individuals should continue to proceed in the manner required by applicable law. 

[3.0] ACTIONS AGAINST A MAYORAL AGENCY: 

In 2002, the New York City Department of Education transferred their supervision and oversight from being dependant on thirty-two school boards to centralized accountability to the mayor of New York City. This system, known as Mayoral Control, has been in place ever since.

Obtaining a Notice of Claim and a Claim Number must be done after notification of the City of the claim. However, a thirty-day window for reviewing the claim must be allowed to the City, especially since settlements are common. After the waiting period, an action may be instituted with the Court. 

There are limitations for the time period whereinafter an action may be instituted. The action cannot be started if the limitation period expires and the claim against the loss, damage, or injury has been made after one year and ninety days.

It must be understood here that even though the Claim Number comes from the Comptroller, the Defendant who is being sued is the City of New York. It is necessary to enter the Claim Number which has been obtained, as well as any specific information regarding the claim on the application for a summons or claim, must be provided. 

Additionally, whenever the trustees or board of education in any school district are required to defend any action against them or the school property, all their costs and reasonable expenses, as well as all costs and damages adjudged against them is considered to be a district charge and shall be levied by a tax upon the district. However, the action must have been conducted in good faith. If the amount becomes disputed later in a meeting with the board of education, it should be adjusted by the county or district judge. 

For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers by clicking here.

Sources

1. Currently, the chancellor is Richard Carranza

2. abbreviated as the Panel for Educational Policy

3. The New York Supreme Court elaborates: 

By chapter 91 of the Laws of 2002, the Education Law was amended to radically restructure the school district’s governance of the City of New York. The amendment provided, among other things, that the Mayor of New York was empowered to appoint a Chancellor who would preside over a Board of Education which was to be expanded from 7 to 13 members, the majority of which were also to be appointed by the Mayor of the City of New York. The Borough Presidents select five Board members. Although that legislation itself made no specific reference to a “Department of Education of the City of New York,” the bylaws subsequently adopted by the Board provide that this 13-member body “shall be known as the Panel for Educational Policy,” which together with the Chancellor and other school employees is designated as the “Department of Education of the City of New York.”

4. The email address for communications is DOESubpoenas@schools.nyc.gov.

5. https://www1.nyc.gov/site/law/index.page).

6. DOESubpoenas@schools.nyc.gov

7. Office of General Counsel Executive Leadership Team

  • Judy Nathan, General Counsel (Interim Acting)
  • Henry Bluestone Smith, Chief of Staff
  • Toni Gantz, Executive Deputy Counsel for Employment and General Practice
  • Charity Guerra, Executive Deputy Counsel for Administrative Trials, Operations and Compliance

8. S.510 – Department of Education Organization Act

 Title II: Establishment of the Department – Establishes an executive department known as the Department of Education to be headed by a Secretary of Education.

Establishes within such Department: (1) a position of Under Secretary of Education; (2) six Assistant Secretary positions; (3) an Office for Civil Rights headed by an Assistant Secretary; (4) an Office of Postsecondary Education headed by an Assistant Secretary; (5) an Office of Elementary and Secondary Education headed by an Assistant Secretary; (6) an Office of Educational Research and Improvement headed by an Assistant Secretary; (7) an office to administer functions relating to the education of overseas dependents of Department of Defense personnel; (8) a General Counsel; (9) an Office of Inspector General; (10) an Intergovernmental Advisory Council on Education to provide an educational forum and to promote better intergovernmental relations; and (11) an Interdepartmental Education Coordinating Committee to assure effective coordination of Federal educational programs and practices.

9. Office of the General Counsel Contact Information 212-374-6888 asklegal@schools.nyc.gov

10. Chancellor’s Regulation D-110:

11. Records Access Officer
NYC Department of Education
52 Chambers Street, Room 308
New York, NY 10007

12. By email: FOIL@schools.nyc.gov

13. Open Records website(Open external link).

14. The email address established for service in this period is ServiceECF@law.nyc.gov.

15. 

  1. The Department for the Aging (DFTA).
  2. The Department of Buildings (DOB).
  3. The Department of City Planning (DCP) 
  4. The Department of Consumer and Worker Protection (DCWP), 
  5. The Department of Correction (DOC, NYCD) is responsible for New York City’s inmates, housing most of them on Rikers Island.
  6. The Department of Cultural Affairs (DCLA) 
  7. The Department of Design & Construction (DDC) 
  8. The Department of Education (DOE) manages the city’s public school system and is governed by the New York City Board of Education.
  9. The New York City Emergency Management (NYCEM) 
  10. The Department of Environmental Protection (DEP) 
  11. The Department of Finance (DOF)
  12. The Sheriff’s Office (Sheriff) 
  13. The Fire Department (FDNY.
  14. The Department of Health & Mental Hygiene (DOHMH).
  15. The Department of Homeless Services (DHS).
  16. The Department of Housing Preservation & Development (HPD) 
  17. The Department of Information Technology & Telecommunications (DoITT) 
  18. The Tweed Courthouse, headquarters of the Department of Education
  19. The Department of Investigation (DOI).
  20. The Law Department (Law) is responsible for most of the city’s legal affairs.
  21. The Department of Parks & Recreation (Parks
  22. The Police Department (NYPD) 
  23. The Department of Probation (DOP
  24. The Department of Records & Information Services (Doris) 
  25. The Department of Sanitation (DSNY) 
  26. The Department of Small Business Services (SBS) 
  27. The Department of Transportation (DOT) 
  28. The Department of Youth & Community Development (DYCD) 
  29. The Office of Management and Budget (OMB

16. On June 30, 2009, the New York State Senate declined to renew the mayor’s full authority over the school system. In particular, State Senate Democratic leader John Sampson of Brooklyn opposed the extension of mayoral control. The authority reverted for a time to the Board of Education, but mayoral control was restored until 2015 in a vote on August 6, 2009. The actual city agency running the schools remains the New York City Department of Education.

17. Information may be obtained from the City of New York Comptroller, One Center Street, New York, NY 10007

18. Attn: Corporation Counsel, 100 Church St., 5 Fl., New York, NY 10007th

19. New York Consolidated Laws, Education Law – EDN § 3811. Costs, expenses, and damages a district charge in certain cases

Whenever any superintendent, principal, member of the teaching or supervisory staff, member of a committee on special education or subcommittee thereof, surrogate parent as defined in the regulations of the commissioner of education, or any trustee or member of the board of education of a school district or non-instructional employee of any school district other than the city school district of the city of New York or any board of cooperative educational services shall defend any action or proceeding, other than a criminal prosecution or an action or proceeding brought against him by a school district or board of cooperative educational services hereafter brought against him, including proceedings before the commissioner of education, arising out of the exercise of his powers or the performance of his duties under this chapter, all his reasonable costs and expenses, as well as all costs and damages adjudged against him, shall be a district charge and shall be levied by tax upon the district or shall constitute an administrative charge upon the board of cooperative educational services provided that (a) such superintendent, principal, member of the teaching or supervisory staff, member of a committee on special education or subcommittee thereof, surrogate parent as defined in the regulations of the commissioner of education, non-instructional employee of any school district or board of cooperative educational services or such trustee or member of a board of education of such school district or board of cooperative educational services shall notify the trustees or board of education or board of cooperative educational services in writing of the commencement of such action or proceedings against him within five days after service of process upon him; and (b) the trustees or board of education or board of cooperative educational services shall, at any time during the ten days next following the notice to them of the commencement of such action or proceedings, have the right to designate and appoint the legal counsel to represent such superintendent, principal, member of the teaching or supervisory staff, member of a committee on special education or subcommittee thereof, surrogate parent as defined in the regulations of the commissioner of education, non-instructional employee of any school district or board of cooperative educational services or such trustee or member of the board of education or board of cooperative educational services in such action or proceedings against him, in the absence of which designation and appointment within the time specified such superintendent, principal, member of the teaching or supervisory staff, member of a committee on special education or subcommittee thereof, surrogate parent as defined in the regulations of the commissioner of education, non-instructional employee of any school district or board of cooperative educational services or such trustee or member of the board of education or board of cooperative educational services may select his own legal counsel; (c) it shall be certified by the court or by the commissioner of education, as the case may be, that he appeared to have acted in good faith with respect to the exercise of his powers or the performance of his duties under this chapter.

INSTRUCTIONS ON SERVING NEW YORK STATE INSURANCE DEPARTMENT

New York State

By Akanksha A. Panicker

Insurance law is a vast field, the insurance sector being composed up of companies that offer risk management in the form of insurance contracts. As an industry, insurance is regarded as a safe sector for investors with minimal fluctuation. While this is not held as the gospel like it was before the turn of the decade (the 1970s and 1980s,) insurance is still relatively stable, rendering a significant demographic who rely on the same. Consequently, statutory safeguards are imperative to protect consumers. 

The New York State Department of Financial Services (DFS or NYSDFS) is the New York state government department responsible for regulating financial services and products, particularly those subject to the New York insurance, banking, and financial services laws. 

The New York State Insurance Department (NYSID) regulated insurance companies in New York State before phased out from their erstwhile roles as state regulators. Despite being lauded as one of the most state-of-the-art insurance enforcement bodies in the sectors, in October 2011, the New York State Insurance Department was merged with the New York State Banking Department to form the New York State Department of Financial Services. The Department of Financial Services does not accept the Insurance Law’s service for actions against insurance groups or fleets, the Motor Vehicle Accident Indemnity Corporation, the State Insurance Fund, insurance agents and brokers, insurance adjusters, or health maintenance organizations. 

The legislature later pondered the viability of insurance policies that were not issued or delivered in the State of New York. The impact of this would render residents in the awkward or impossible position of resorting to distant forums to assert legal rights under such policies. Consequently, where insurers are not authorized to do business in the state, the legislature thereafter provided a substituted service of process to achieve the ends. The legislature postulated that the benefits that pertained to such insurers and declare that in so doing, it exercises its power to protect its residents. It further delineates the constitution of business in the state and the powers and privileges available whereunder it declared that the business of insurance and every person engaged is subject to the laws of the states. 

[1.0] WHO MAY BE SERVED AND THE REQUIREMENTS OF SERVICE

A Service of Process action may be served against any insurance company licensed in New York State, an unlicensed insurance company, a Federal Risk Retention Group, or a Federal Purchasing Group, for an action taking place in a Court located in New York State. The New York State Insurance Department does not accept Service of Process against Motor Vehicle Accident Indemnity Corporation, the State Insurance Fund, resident agents and brokers, or Health Maintenance Organizations. The court of venue may be in any county located in New York State.

Service of process upon any such insurer may be conducted in any court of competent jurisdiction of this state. Service is required by serving the superintendent, deputy superintendent, or any salaried employee of the department to whom the superintendent designates authority. 

As a general rule, the process is served with two copies and payment of USD 40. Upon receipt of the same,  a copy of such process by registered or certified mail will be sent by the superintendent to the defendant at its last known principal place of business. This last known place will be determined as designated by the issuer of such process and will require a record to be maintained of all process that has been similarly served upon them.  

Such service of process is sufficient on the main condition that notice of the service and a copy of the process must be sent within ten days by or on behalf of the plaintiff to the defendant at its last known principal place of business. This service may be enacted by registered or certified mail with the return receipt requested. It is imperative to have a notice of Service conveying successful service to the Superintendent of Insurance has been served that is delivered within ten days to the insurance company. This notice of service must be sent via certified mail with return receipt requested.  Form CIV-GP-74-A may complete notice of service, a legal form released by the New York City Civil Court in their capacity as a government authority operating within New York City.

The plaintiff’s main responsibility is to also file with the clerk of the court or the justice themselves (if there is no clerk of the court in the county) an  Affidavit Of Compliance. The affidavit is of imperative nature and must be furnished with a copy of the process and either a return receipt signed by the defendant or some other individual who is suitably qualified to receive it’s registered or certified mail by the rules and customs of the post office department. 

In case acceptance was refused by the defendant or its agent, the original envelope bearing a notation by the postal authorities that receipt was refused. Service of the process so made shall be deemed made within any court’s territorial jurisdiction in this state.

[2.0] ROLE OF THE SUPERINTENDENT 

The New York Superintendent of Financial Services is an appointed state executive position in the New York state government, responsible for overseeing the Department of Financial Services, which supervises and regulates insurance companies, banks, and other financial institutions. The superintendent accepts the process on behalf of many insurance businesses if they are registered and transacting business within the state.  Service will personally serve the Superintendent of Insurance at the request of the individual.

Regardless of whether the insurance company is domestic or a foreign or alien insurer, companies that want to continue doing insurance in the state need to file a power of attorney in the superintendent’s office. However, the responsibility of attorney power for foreign or alien unauthorized companies is significantly more limited than other forms of companies. 

The insurer must execute this power of attorney and authorize the superintendent and their successors to be the state’s true and lawful attorney. Consequently, the process can then be levied upon them on a contract delivered or to be delivered. Furthermore, this also allows the superintendent to accept the process for any cause of action arising in the state. 

A power of attorney must be accompanied by the [A.] insurer’s written certificate of designation of the name and [B.] address of the officer, agent, or another person to whom the superintendent or their deputy shall forward such process. If the designation of the name must be changed, a certificate of designation may be filed with the superintendent’s office.  

The superintendent shall keep a record of each process served upon them. It is necessary to include complete records, including the date of service. In fact, upon request made within ten years of such service,  the superintendent is obligated to issue a certificate under their seal certifying the receipt of the process by an authorized person, the date and place of service, and the receipt of the statutory fee. For any means of service upon the superintendent, the record and the process itself will be destroyed by them after ten years of said service. 

Regardless of whether the service is done by mail, the insurance company effectively appoints the superintendent and their relevant designated successors as their lawful attorney enabled to accept process if they are empowered to affect the [A.] issuance or delivery of contracts of insurance to residents of this state or to corporations authorized to do business therein,[B.] solicitation of applications for such contracts, [C.] collection of premiums, membership fees, assessments or other considerations for such contracts, or [D.] any other business transaction. 

Before any unauthorized foreign or alien insurer files any pleading in any proceeding against it, it must deposit either cash or securities with the clerk of the court. As long as the proceeding is pending, the court will approve an amount sufficient to secure payment of any final judgment delivered by the court. However, it must be noted that this provision is subject to the discretion of the court. An order may be made that is dispensatory to the deposit made. This depends on the superintendent’s certification that the insurer maintains an amount within state funds or securities that constitutes a sufficient amount to satisfy any final judgment. The alternative is to procure a license to practice insurance in the state.

[3.0] REQUIREMENTS OF PROCESS 

If the above conditions are satisfied, all lawful process in any proceeding instituted by or on behalf of an insured and effectively conveys that all process thus served has the equivalent same legal force and validity as personal service of process in this state upon such insurer. It is further acceptable if service is done on any person who works on behalf of a said insurer in the capacity of insurance by [A.] soliciting; [B.] making, issuing or delivering any contract of insurance; or [C.] collecting or receiving any premium, membership fee, assessment or other consideration. 

The requisite documents should be filed within thirty days after the return receipt or other official proof of delivery, or the plaintiff receives the original envelope bearing a notation of refusal. The papers must be filed according to the relevant section. If the proceeding is against an unlicensed company, the process is considered accomplished when all papers that accompany complete filing have been delivered.

When selecting an insurance policy, consumers are also selecting an insurance company and require both ease of access and stability provided by that company. This is not always possible in terms of an out-state insurance company. Consequently, the New York Department of Financial Services provides a holistic system for serving summonses on insurance companies that are being sued. The lack of a local office does not bar individuals from raising their complaints. The Department will accept one cheque or money order for multiple insurance companies being served. However, if payment is made with a single check or money order and the papers are unacceptable as to any one of the parties being served (for example, if the name of the insurance company is incorrect), all of the papers that have been attempt to be served will be returned, meaning that service of process will not have been effected upon any of the companies.

For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers by clicking here.

Sources

1.N.Y. INSURANCE LAW § 1213: INSURANCE — ORGANIZATION AND CORPORATE PROCEDURE — SERVICE OF PROCESS ON SUPERINTENDENT AS ATTORNEY FOR UNAUTHORIZED INSURERS

to define, for this section, what constitutes doing business in this state, and also exercises powers and privileges available to the state by public law number fifteen, seventy-ninth congress of the United States, chapter twenty, first session, senate number three hundred forty, as amended, ( 15 U.S.C. §1011 ) which declares that the business of insurance and every person engaged therein shall be subject to the laws of the several states

2.pursuant to Section 1212 of the Insurance Law),

3. under Section 1213 of the Insurance Law

4. Section 5904

5. Section 5908

6.By mail: addressed to New York State Department of Financial Services, Corporate Affairs Unit, One Commerce Plaza – 20th Floor, Albany, New York 12257.

In-person: at New York State Department of Financial Services, Office of General Counsel, One State Street, New York, NY 10004, or One Commerce Plaza, Albany, NY 12257.

A fee of 40 dollars is regardless of whether the company is authorized or unauthorized.  See, “At the time of service of process, a fee of forty dollars shall be paid to the superintendent or his deputy” N.Y. Ins. Law § 1212

7. Form CIV-GP-74-B “Affidavit of Compliance With the Insurance Law” – New York City

8. N.Y. Ins. Law § 1212

(d) The power of attorney required by subsection (a) hereof shall be by its terms of indefinite duration, shall bind any person or corporation which as successor acquires the insurer’s assets and assumes its liabilities by merger or consolidation, and shall not be terminated by the insurer or such successor so long as any contracts, or liabilities or duties arising out of contracts, issued or delivered by such insurer in this state are in effect. Except as provided herein, or in section one thousand two hundred thirteen of this article, the superintendent shall not be designated as an attorney for the service of process upon any unlicensed alien or foreign insurer.

9.Whenever any lawful process shall be served upon the superintendent, and deputy superintendent, or any salaried employee of the department whom the superintendent designates for such purpose under the provisions of this section, such person shall forward a copy of such process by mail, prepaid, directed to the person last designated by such insurer, as shown by the records of the department.

10.N.Y. Ins. Law § 1212

11. Under either section 1212 or 1213

12.New York Consolidated Laws, Insurance Law – ISC § 1213. Service of process on superintendent as an attorney for unauthorized insurers

(d)In any action against an unauthorized foreign or alien insurer upon a contract of insurance issued or delivered in this state to a resident thereof or to a corporation authorized to do business therein, if the insurer has failed for thirty days after demand before the commencement of the action to make payment under the contract. It appears to the court that such refusal was vexatious. Without reasonable cause, the court may allow the plaintiff a reasonable attorney’s fee and include such a fee in any judgment rendered in such action. Such fee shall not exceed twelve and one-half percent of the amount the court finds the plaintiff is entitled to recover against the insurer nor be less than twenty-five dollars. Failure of an insurer to defend any such action shall be prima facie evidence that its failure to pay was vexatious and without reasonable cause.

13. Inclusive of any beneficiary arising out of any such contract of insurance,

14.Provided
Notice of such service and a copy of such process is sent within ten days thereafter, by or on behalf of the plaintiff to the defendant at last known principal place of business of the defendant, by registered mail with return receipt requested. The plaintiff shall file with the clerk of the court in which the action is pending, or with the judge or justice of such court in case there be no clerk, an affidavit of herewith, a copy of the process and either a return receipt purporting to be signed by the defendant or a person qualified to receive its registered mail by the rules and customs of the post office department; or if acceptance was refused by the defendant or its agent the original envelope bearing a notation by the postal authorities that receipt was refused.

15.Insurance company licensing: Commitments and requirements for domestic and foreign entities, https://www.dfs.ny.gov/apps_and_licensing/insurance_companies/licensing_domestic_foreign_entities (last visited Feb 2, 2021) 

HOW TO SERVE NEW YORK DEPARTMENT OF FINANCIAL SERVICES

New York Seal

By: Akanksha A. Panicker

The New York Department of Financial Services oversees and controls financial services and goods, including aspects relevant to New York insurance and banking laws. The Department has five different divisions: [A.] the Insurance Division, [B.] the Department of Banking, [C.] the Financial Fraud Division, [D.] the Real Estates Division, and the [E.] Capital Markets Division. 

The insurance division comprises numerous bureaus regarding life, health, and property. The FFCPD was established by the Financial Services Law and sought to safeguard and inform customers of financial goods and services. It also aims to combat financial fraud. The FFCPD enacts civil and criminal investigations of actions that may constitute breaches of the Financial Services Law, Banking Law, Insurance Law, or other rules and brings compliance proceedings where applicable.

The Department also has an Office of General Counsel, which is the legal arm of the Department. It develops laws, rules, and circular letters, provide legal recommendations, and renders Department staff legal guidance. 

[1.0] HOW TO SERVE PROCESS ON THE SUPERINTENDENT

Typically, the process’s service consists of the documents used to initiate a litigation suit (e.g., a warrant, notice of petition, order to show cause). The defendant receives written notice to appear or respond in court. The process should not require subpoenas, appeals, or other pleadings unrelated to the pendant suit’s claims included in the pleadings.

Service can be successful given that one has complied with all legislative and regulatory specifications for service commencement.

Two copies of the documents comprising the process must be delivered in person to the Superintendent’s office with a cheque for USD 2. This cheque is made payable and addressed to the ‘Superintendent of Financial Services of New York.’ The New York Superintendent of Financial Services is an appointed state executive position in the New York state government. The superintendent is key in administering the Department of Financial Services, which oversees and regulates insurance companies, banks, and other financial institutions in the state.

If there are additional papers in a case that inherently do not commence the proceeding against the bank, they should be served directly on the bank or its counsel thereafter.

Foreign banks that the Superintendent licenses to operate a branch, agency or representative office in New York have appointed the Superintendent to accept service in any action or proceeding against them on causes of action arising out of transactions with their New York Offices. 

[1.1] HOW TO SERVE AN OUT OF STATE CORPORATION

To perform non-testamentary trust transactions in New York, a must-out-state trust corporation without a physical location in the state shall comply with the submission of records with the Department of Financial Services. It must be understood that a  duly qualified out-of-state trust company can only act as a Trustee and exercise trust powers in New York State upon the filing of the relevant documents with the Superintendent. 

 On legislative criteria for a bank’s organization, Article XV of the Banking Law acts as the source.  Incorporators need to provide information in a ‘Certificate of Merit’ enforcing an application. It is the applicant’s responsibility to offer full and correct documentation and provide information supporting the application. It might be important to evaluate the applicant during the application evaluation period, and additional information may be required.

Pending the outcome of a formal application, a succinct document detailing the proposed business strategy is necessary. The summary should provide the reason for the proposed organization, the category of consumers it represents, the identities and jobs of the incorporators, the name and background of the Chief Executive Officer, and the proposed capitalization. Additional details regarding financial forecasts can be provided as well.

Upon reviewing the schedule, a representative of the Department of Financial Resources may contact the person to arrange a suitable period to discuss the plan’s specifics.

Upon service of process, it is key to remember that whether operating under New York Charter or Federal Charter, US banks headquartered in New York State have not appointed the Superintendent their agent for service of process, requiring these institutions to be served directly. 

[1.2] REQUIREMENTS OF PROOF

Proof of service may be obtained by affidavit of compliance filed with the process within thirty days after such service. The affidavit must be filed with the clerk of the court.

 If a copy of the process is mailed, it is necessary to file with the affidavit of compliance either the return receipt signed by such foreign banking corporation or the other official proof of delivery: the original envelope with a notation by the postal authorities. This latter is used in non-service instances as proof that acceptance was refused. If acceptance was refused, a copy of the notice and process together with notice of the mailing by registered mail and refusal to accept should be promptly sent to such foreign banking corporation at the same address by ordinary mail, and the affidavit of compliance shall so state.

Service of process is usually complete ten days after such papers are filed with the court’s clerk. The refusal to accept the registered mail delivery or to sign the return receipt shall not affect the service’s validity. Such foreign banking corporation refusing to accept such registered mail shall be charged with knowledge of its contents.

[2.0] SERVICE under THE INSURANCE LAW

The sound legal process can be performed upon the Superintendent on the behest of an insurance corporation or fraternal benefit society approved in New York, or risk retention party registered in New York, in respect of a contract delivered or released for delivery, or in consideration of an action occurring in New York. Service of process upon an insurer in any proceeding in any court of competent jurisdiction may be made by serving the superintendent, and deputy superintendent, or any salaried employee of the department whom the superintendent designates for such purpose, all of whom shall have authority to accept such service under any such power of attorney.

The service of process upon a domestic fraternal benefit society shall only be made by serving the superintendent, and deputy superintendent, any salaried employee of the department whom the superintendent designates for such purpose, or by serving the process at the home office of such society. The service of process upon any foreign or alien fraternal benefit society can be deemed to have been made within the territorial jurisdiction of any court in this state if shall be made only by serving the superintendent, and deputy superintendent, or any salaried employee of the department whom the superintendent designates for such purpose.  The legal process may be executed on behalf of an unauthorized or unlicensed corporation by the Superintendent.

 If the superintendent forwards a copy of the process by registered or certified mail to the defendant at its last known principal place of business, as designated by the issuer of such process and keeps a record of the process so served upon them, the service is deemed sufficient. The only caveat is that the notice of such service and a copy of the process are sent within ten days thereafter by or on behalf of the plaintiff to the defendant at its last known principal place of business by registered or certified mail with return receipt requested.

 Documents and processes can be served upon the Superintendent on the part of a certified buying group or a licensed life settlement provider.

The Department of Financial Resources does not recognize service of process under the Insurance Law of action against insurance groups or fleets, the Motor Vehicle Collision Indemnity Company, the State Insurance Agency, insurance dealers and vendors, insurance adjusters, and health maintenance associations.

[2.1] SERVICE FEES

If the action is being brought against a licensed insurance company or fraternal benefit society, one copy of the papers and a USD 40 cheque or money order is mandatory. This cheque must be addressed or made payable to the ‘Superintendent of Financial Services.’

 However, an action against an unlicensed insurance company would require two copies of the papers with the name and last known address of the principal place of business of the insurance company being served.  These specifications would also require a USD 40 cheque or money order made payable to the ‘Superintendent of Financial Services.’ A similar process is required for an action against a licensed life settlement provider. Two copies of the papers and a USD 40 cheque or money order must be made payable to the ‘Superintendent of Financial Services.’

If the action is being brought against a registered risk retention group or a registered purchasing group, two copies of the papers and a USD 20  cheque or money order should be made payable to the ‘Superintendent of Financial Services.’

[2.2] SERVICE FEES FOR MORE THAN ONE DEFENDANT-COMPANY

The Department of Insurance will approve one cheque or money order for insurance plans for several entities. However, if payment is rendered by a single cheque or money order and the papers are improper as to any one of the parties being handled (for example, if the name of the insurance firm is incorrect), any of the papers sought to serve will be returned, showing the service of process will not have been effected upon any of the entities. The introduction of a written plan, as well as a corporate strategy, must be included. 

After this analysis, an official from the Department of Financial Services will inform the individual about arranging a mutually agreeable time to discuss the plan’s details. The overview should include the justification for the organization’s formation and organization, the Chief Executive Officer’s name and job, and the amount of money that the institution is planning to earn. Additional references to the numbers from the projection will be used.

Appropriate service on the Department of Financial Services is imperative. The Department’s mission is to foster the financial industry’s growth in New York and spur state economic development through judicious regulation and vigilant supervision. To ensure the continued solvency and protect users of financial products and services from financially impaired or insolvent providers of such services, the service of process must be fast and accurate. The service of documents is a key portion to elevating standards of honesty and transparency. It can be a cornerstone in eliminating financial fraud and other criminal abuses and unethical conduct in the industry. 

For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers by clicking here.

Sources

1. The current General Counsel is Richard Weber since May 1, 2020.

2. One State Street, New York, NY  10004

3. New York State Department of Financial Services, Office of General Counsel, One State Street, New York, NY 10004, or to One Commerce Plaza, Albany, NY 12257

4. The current officeholder is Linda Lacewell

5. Articles 1 and 2 of the Financial Services Law chapter of the New York Laws. Justia, ‘NY Fin Serv L § 102 (2019),’ 

FIS Articles 1 & 2:

[T]he purpose of this chapter is to consolidate the department of insurance and banking, and provide for the enforcement of the insurance, banking, and financial services laws, under the auspices of a single state agency to be known as the ‘department of financial services’ … The head of the department shall be the superintendent of financial services.

6. Duties of the office include but are not limited to 

  1. Encouraging, promoting, and assisting financial services institutions in operating, remaining, and expanding in the state;
  2. Providing for the effective enforcement of banking and insurance laws;
  3. Ensuring the safety and soundness of the state’s financial services industries;
  4. Protecting the public interest and the interests of shareholders; and
  5. Promoting the reduction and elimination of fraud, abuse, and unethical conduct regarding financial services institutions and their customers.

7. Section 131.3 of the New York Banking Law

8. Article 15, General Provisions Applicable to Banking Stock Corporations, Limited Liability Investment Companies, and Limited Liability Trust Companies, Banking (BNK)

9. Addressed to New York State Department of Financial Services, Office of General Counsel, One Commerce Plaza, Albany, NY 12257

10New York Consolidated Laws, Insurance Law – ISC § 5904. Risk-retention groups not chartered in this state

A risk retention group not chartered and licensed as a property/casualty insurer in this state, seeking to do business or doing business as a risk retention group in this state, shall comply with the laws of this state, as follows:

(a)Notice of operations and designation of the superintendent as an agent. Before offering insurance in this state, such risk retention group shall submit to the superintendent:

(1)a statement identifying the state or states in which the risk retention group is chartered and licensed as an insurance company to write liability insurance, the dates of chartering and licensing, and its principal place of business;

(2)a copy of its plan of operation or feasibility study and all revisions of such plan or study submitted to its chartering and licensing state; provided, however, that the provision relating to the submission of a plan of operation or feasibility study shall not apply concerning any kind or classification of liability insurance which was:

(A)defined in the federal Product Liability Risk Retention Act of 1981 1 before October twenty-seventh, nineteen hundred eighty-six; and

(B)offered before such date by any risk retention group which had been chartered and was operating for not less than three years before such date; and

(3)a statement of registration, for which a filing fee shall be imposed by a regulation to be promulgated by the superintendent, which statement of registration shall include a power of attorney designating the superintendent as its agent to receive service of process in any proceeding against it on a contract delivered or issued for delivery, or on a cause of action arising, in this state.

(A)… (B)Service of process upon a risk retention group under this paragraph shall be made by serving the superintendent, and deputy superintendent, or any salaried employee of the department whom the superintendent designates for such purpose with two copies thereof and the payment of a fee of twenty dollars. The superintendent shall forward a copy of such process by registered or certified mail to the risk retention group at the address given in its written certificate of designation and shall keep a record of all such process served. Service of the process so made shall be deemed made within any court’s territorial jurisdiction in this state.

11. as stated in Section 1213

12. Service may be made by mailing or delivering the papers to the Department as follows:

  • By mail: addressed to New York State Department of Financial Services, Corporate Affairs Unit, One Commerce Plaza – 20th Floor, Albany, New York 12257.
  • In-person: at New York State Department of Financial Services, Office of General Counsel, One State Street, New York, NY 10004, or One Commerce Plaza, Albany, NY 12257.