Process Service

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.

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.

SERVICE OF PROCESS ON THE ATTORNEY GENERAL OF NEW YORK

New York

By: Akanksha A. Panicker

The Attorney General of New York is the chief legal officer of the U.S. state of New York and head of the state government’s Department of Law. It advises the executive branch of state government and defends actions and proceedings on behalf of the state. The degree to which the Attorney General directly gives legal counsel to the government differs by state and particular office-holder, depending on past legal career level and significance.

The Attorney General has ministerial responsibilities for legal matters; the ministerial portfolio is essentially similar to that of a Minister of Justice of several other nations. Considering the influx of claims and applications that pour into the Attorney General’s office every day, service of process is an imperative part to prevent the case from being dismissed or not heard at all. 

[1.0] HOW TO ENSURE SERVICE UPON A GOVERNMENTAL AGENCY: 

New York City should be served by personal delivery to the Corporation Counsel or any person designated to receive the writing process and must be filed in the County Clerk’s Office, New York County. Personal service on the State of New York is required to be made by delivering the same to an Assistant Attorney General at the Attorney General’s office or to the Attorney General in the State, wherein the summons should be provided. 

This is also held to be true in a situation where an officer is issued solely in an official capacity. For an agency, this would mean that personal delivery to the officer or the agency’s chief executive officer would have to be committed on a personal delivery basis. However, service on said officer may also be made by [A.] mailing of the papers by certified mail, return receipt requested, the officer or chief executive officer of the agency, or [B.] personal service the State of New York. However, service on a corporation can also be made by delivering the process to an officer, director, or general agent, or cashier or assistant cashier, or any other agent authorized by appointment or by law to receive service.

[1.1] SERVICE BY MAIL 

Service by certified mail cannot be complete until the summons are received in the agency’s principal office. This also holds until personal service upon the state in the office’s manner is concluded.  

Service by certified mail must be addressed suitably on the front of the envelope and should bear the mail’s legend being urgent and legal. After this has been completed, the service may be accepted. The chief executive officer of every such agency should designate at least one person, not counting themselves, to accept personal service on behalf of the agency. This procedure is held to be true in any state agency. As an alternative to personal service methods, documents may be served by the plaintiff or any other person by mailing to the person or entity to be served. Mail-in this context means that first-class mail must be employed with postage prepaid, a copy of the documents together with two copies of a statement of service by mail, and acknowledgment of receipt.

  1. SERVICE OF PROCESS DURING THE CORONAVIRUS

Like the rest of the world, New York continues to withstand the coronavirus’s pandemic (COVID-19). New York citizens should prepare themselves by being updated as to legal and safety processes during this time. In addition to being knowledgeable about safety, New Yorkers must also be cognizant of their rights and responsibilities and the services accessible to them so that they can remain protected from further exposure as well as ensure a return to normalcy through following protective guidelines to counter the unprecedented health and safety threat to the public. 

It is the people’s officials’ responsibility to lead them in taking measures for defense against the virus. Consequently, while personal service has hitherto been preferred, in light of altered circumstances and the risks presented by the COVID-19 pandemic, the Attorney General has since accepted electronic service of summons and complaints. This might be acceptable when the named party is the Attorney General, the Department of Justice, or an official or employee of the Department of Justice in their official capacity.

The policy will not immediately be nullified upon lifting of emergency provisions. The minimal contact guidelines are to stay in effect ninety days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted. This would require the service via mail to follow the procedure in the format that is traditionally demanded. Failure to do so could result in rejection of the service, insofar as the Attorney General reserves the right to reject service of process in civil actions where a defect in service is found.  If the summons or complaints in a civil action are made, it must be to the Attorney General’s official email address. This rule is inflexible without any express and written consent that exonerates it. Said consent might be presented electronically. 

Like service by personal delivery, the Attorney General still functions by adhering to strict hours. Same-day delivery for electronic service made after 5:00 p.m. cannot be considered acceptable and will instead be carried onto the next day. This means that any service that abrogates the 5:00 p.m. deadline is deemed to be a part of the next business day, i.e., is accepted at 9:00 a.m. on the next day.

[2.0] HOW TO SERVE PROCESS ON THE OFFICE OF THE ATTORNEY GENERAL IN PERSON

Any individual may effect service on any office of the Attorney General. The addresses and hours of operation of the Regional Offices are dependent on the area. However,  personal service may be made by serving any member of the Managing Attorney’s office staff, guided by signs to direct the same. Personal service may be made by delivering the summons to an assistant attorney-general at the attorney general’s office or to the attorney-general within the state.

Additionally, defendants are obligated to provide notice following the filing of a proposed class action settlement are required to apply to an appropriate federal officer, being either [A.] the Attorney General; or [B.] a depository institution of the state, a depository institution holding company, a foreign bank, or a non-depository institution subsidiary. This is required to be submitted if the institution being filed against is a Federal depository institution. However, the settlement may be filed electronically during the COVID-19 emergency. 

[2.1] UNDERSTANDING SERVICE IN TERMS OF A CLAIM OR A NOTICE OF INTENTION TO FILE A CLAIM OR ACTION FOR DECLARATORY JUDGMENT.

A claim is the first official notice of the case that the defendant will have. For this reason, there are special requirements for serving the claims. Section 11 of the Court of Claims Act provides requirements before service. However, the claim or notice of intention to file a claim must have [A.] the post office address of each claimant and [B.]  the name, post office address, and telephone number of the attorney claimant. It must be remembered here that if there are multiple causes of action that the claimant is proceeding under, each one should be separately stated and numbered. The notice of intention itself should be served personally or by certified mail, return receipt requested, upon the Attorney General within the requisite timeframe for service. 

As well as communicating details as to damages, it is also required to have it shall contain a specific description of the property giving its location and quantity in claims for the temporary or real appropriation of property. The original and all filed copies of such claim shall have annexed a duplicate of the official appropriation map or maps filed in the office of the commissioner of the department involved in the taking, covering the property for which the claim is filed.

To clarify the procedure in the current framework of COVID-19, it is ultimately important to remember that service by certified mail, return receipt requested shall not be complete until the claim or notice of intention is received in the office of the Attorney General. In all actions where a notice of intention to file a claim has been served, the claim shall state the date of service upon the Attorney General. 

[2.2] REQUIREMENTS FROM PROCESS SERVERS

In addition to the other remedies provided, the Attorney General’s application may be made in the name of the people of the state of New York addressed to a court or justice having jurisdiction by a special proceeding to issue an injunction. This would require notice to be delivered to the defendant that consists of at least five days. 

This notice must be delivered to restrain the continuance of these violations. The Attorney General is required to forward this application so that the court of justice may decide whether the defendant is in violation and whether an injunction or relief is required sans immediate proof of injury or damage.  If it is the case of a violation, a civil penalty of a thousand dollars or less may be awarded per violation within the course’s jurisdiction. 

It must be noted herein that no authority can bring a claim holding a process server or agency liable for any action that corresponds to the violation. This immunity is not ironclad, as the process server or agency needs to demonstrate a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error. Due diligence must have been performed, the requirement of due diligence is paramount, and procedures in avoidance of the error should have been undertaken in this regard.

In connection with any such proposed application, the Attorney General is authorized to take proof and determine the relevant facts and issue subpoenas by the civil practice law and rules.

All the records required to be maintained should be retained by a process server or process serving agency for a minimum of three years. They must be available for inspection by the Attorney General. However, the Attorney General should impart a process server or process serving agency at least five days prior written notice of its desire to make an inspection of records and shall specify the records to be inspected.

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. Located at 100 Church Street, New York, New York)

2. N.Y. Exec. Law § 62

The attorney-general may appoint such assistant attorneys-general, deputy assistant attorneys-general, and attorneys as he may deem necessary and fix their compensation within the amounts appropriated, therefore. Whenever deputy or deputy attorney-general is referred to or designated in any law, contract, or document, such references or designations shall be deemed to refer to and include assistant attorneys-general, deputy assistant attorneys-general, or attorneys appointed by the attorney-general

3. Person designated by the chief executive officer to receive service

4.  NY CPLR § 307 (2012)

5. NY CPLR § 311 (2015)

6. The term “principal office of the agency” refers to the location at which the office of the chief executive officer of the agency is generally located.

7. This is  deemed to refer to any agency, board, bureau, commission, division, tribunal, or other entity that constitutes the state for purposes of  service

8. AGelectronicservice@doj.ca.gov.

9. The OAG may be personally served at: 

  1. Albany:  Empire State Plaza

Justice Building, 2nd Floor

Albany, NY 12224

Hours of Operation: 9 AM – 5 PM

  1. New York City: 28 Liberty Street, 16th Floor

New York, NY 1000 Hours of Operation 9 AM – 5 PM

10. NY CPLR § 307 (2012)

  §307. Personal service upon the state.

Personal service upon the state shall be made by delivering the summons to an assistant attorney-general at the attorney general’s office or to the attorney-general within the state.

11. CAFA Coordinator

Office of the Attorney General

28 Liberty Street, 15th Floor

New York, NY  10005

12.CAFA Notices during the COVID-19 crisis may be effected by email: CAFA.Notices@ag.ny.gov

13. There shall be included in each claim, or attached thereto, a schedule showing in detail each item of damage claimed and the amount of such item

14.NY Gen Bus L § 89-V (2015)  § 89-v Gen. Bus. Enforcement by Attorney General.

15. In any such proceeding, the court may make allowances to the Attorney General as provided in paragraph six of subdivision (a) of section eighty-three hundred three of the civil practice law and rules.

16. Examples of a bona fide error include, but are not limited to, clerical calculation, computer malfunction, and programming and printing errors

17. “N.Y. Gen. Bus. Law § 89-GG.

SERVICE OF PROCESS IN CANADA

CANADA FLAG

By: Akanksha A. Panicker

Given the Hague Convention, Canada Process Service structure is comparable to that of the United States’. The national government exercises power among various provinces and territories whose legal system operates parallel to federal legislation. Canadian provinces still do not have the same sovereign position as US states, although each jurisdiction follows its own mechanism concerning the process.

[1.0] REQUIREMENTS OF CANADA PROCESS SERVICE. 

As well as a national central authority, each of Canada’s regional and municipal governments establishes a central authority for Hague purposes (the United States, in contrast, has but a single Central Authority). While the Canadian justice structure is somewhat close to the US, Americans should be cautious when equating service in Canada to service in the States. Proper protocols must also be practiced to be recognized by US courts and, subsequently, by Canadian courts in an enforcement proceeding. Specific techniques must be applied in different localities.

Canada Process Service is regulated by the Hague Convention, which had been ratified by Canada in September of 1998 and came into effect on the first of May of 1999.

[1.1] WHO IS AUTHORIZED TO SERVE

In Quebec, mail service is approved, but it is highly advised that all complaints should be formally served. Explicitly only in Quebec, direct access to a huissier de justice is permitted, who is liable for serving process by Article 5 requests.  

However, the Attorney General for Canada, Ministry of the Attorney General or Minister of Justice of a province or territory, or Clerks of the courts and their deputies for a judicial or a court district are authorized forwarding authorities under Article 3. Alberta forwards documents through the central authority alone, and the Northwest territories rely on the Deputy Minister of Justice, Northwest Territories. It must be noted that Members of the law societies of all provinces and territories are qualified as forwarding authorities for non-litigious matters, insofar as the  Members of the Board of Notaries of the Province of Québec are qualified to forward said documents. 

Under Article 6, the sheriffs, deputy-sheriffs, sub-sheriffs, clerk of the court or his/her deputy for the judicial district (except in Manitoba where there are no judicial districts) in which the person is to be served or the huissiers (only in Quebec) are competent to complete the certificate of service in addition to the central authorities. 

Canada Process Service is active in other provinces outside of Quebec through individual  Canada process servers. In situations where there is a Canada process server responsible for service, it is crucial to provide proof of service. Failing to collect proof may dismiss a case or failure to conduct business with a client. However, it must be remembered that if any individual intends to serve a subpoena, they cannot do it under the Hague Service Convention and must opt for the Hague Evidence Convention instead.

[2.0] TRANSLATION OF DOCUMENTS

Different provinces take a different approach to translating documents for service. For several provinces, one may create a French or English translation. However, all papers being sent to Quebec should ideally be translated into French, and it is highly recommended to do so. Despite this preference, one may serve said documentation in its original nature if the applicant consents to this method. Still, it has a probability of being rejected if the recipient fails to accept the documents based on not understanding their content. Formal service and service in a specific manner would be dependent based on the relevant jurisdiction.

All papers concerned with Alberta, British Columbia, Newfoundland and Labrador, Nova Scotia, and Prince Edward Island must be published in or translated into English.  Documents originating from Manitoba, Northwest Territory, Nunavut, Ontario, and Saskatchewan must be written in English or French.

Papers for New Brunswick and the Yukon would have to be converted into English or French. The Central Authority of these two provinces might require documents to be translated into English or French; they may even require documents to be translated into languages. Some addressees recognize and reserve the right to direct the same.

In Québec, the document ought to be drafted in French. In such circumstances, a given English translation of the document can suffice subject to the recipient’s permission.  The Central Authority for Québec can, on request in writing by the forwarding authority, authorize the transmission of documents in English or translated from a foreign language if the receiver understands English.

In Québec, service or notification recipients may refuse service or notification if they consider that the translation specifications have not been met.

[3.0] CANADA PROCESS SERVICE UNDER THE HAGUE CONVENTION

The Hague Service Convention establishes a streamlined and uniform means of effecting service in contracting states.  Under the Convention, each state must designate a central authority to accept incoming service requests. A judicial officer who is competent to serve process in the state of origin is permitted to send a service request directly to the state’s central authority where service is to be made.

In keeping with the methods already laid forth by the Hague Convention, the correct forms and payments must be submitted to the appointed Canadian Central  Authority. When the records are submitted to the centralized authority, individuals will not get any notifications until they receive validation of operation or non-service. In all provinces and territories in Canada, except the province of Québec, the term “service” covers both service and “notification.” In the context of Article 5(1)(a), effecting service or notification requests through a Canadian Central Authority follows the same methodology that the usual service of judicial documents undertakes in proceedings in the Central Authority’s jurisdiction.  The normal procedure for service in Canada is personal service made by a Canada process server in Alberta, a huissier in Québec, an enforcement officer of the Ministry of the Attorney General in Ontario, or a sheriff or deputy sheriff in other parts of Canada. Personal delivery is often preferred, which may be done by handing a copy of the documents directly to an individual or on a corporation by handing a copy of the document to the individual or an officer, director, or agent of the corporation at its place of business. Costs for the execution of service will be CAD 100. In Québec, service execution by a huissier costs CAD 100, and notification is free of charge.

Notification in Québec is most commonly made by delivering the original or certified copy or abstract of the act, document, or notice to the person to be notified and obtaining a receipt thereafter. Consequently, it must be established that unless the method requested by the applicant is inconsistent with the laws of their jurisdiction, Central Authorities in Canada will consider requests for service or notification by a particular method requested by the applicant under 5(1)(b). However, it is specified that foreign diplomatic, consular, or law enforcement officers cannot carry out service while on Canadian territory without the explicit permission granted to them by the Government of Canada. However, the Central Authorities in Canada designated by Articles 2 and 18 of the Convention are competent to receive requests for service transmitted by a foreign consul within Canada.

To simplify proceedings in this light, Canada has hitherto required that either Canadian public officials, the sheriff (in Quebec, the huissier) of the appropriate judicial district, or private process-servers be retained party to the litigation affect the required service. 

It must be kept in mind that effecting formal service of legal documents that emanate from America upon an individual in Canada does not per se require the recognition or enforcement in Canada of any ensuing judgment, decree, or order that an American court may render.

[3.1] INFORMAL CANADA PROCESS SERVICE

Canada adheres to the Hague Convention, which has numerous forms to expedite delivery. However, the Convention and Canadian jurisprudence may not uphold a decision or judgment if service has not been performed by legitimate means.  Service via an agent is a tricky spot to maneuver herein. However, guidelines have been laid down wherein service via agent may be sufficient to satisfy the case’s procedural requirements.    

Going by informal approaches has benefited from being faster and cheaper than going through the structured and formal method. However, this also attracts a larger risk of dismissal and must be kept in mind when effecting service. 

[3.2]  DIRECT SERVICE

The most direct way to serve American legal documents in Canada is by forwarding duplicate sets of English documents (preferably with a French translation in Quebec) directly to the sheriff/huissier in whose judicial district wherein service is required. The aggregated costs for this form of service is dependent upon [A.] the number of attempts made at service, [B.] ease of accessing the individual to be served, and [C.] the location of the individual served.  When no urgency and no difficulty locating or serving the person to whom the documents are addressed, the sheriff/huissier’s services are generally the least expensive and simplest to effect.

The licensing of a private Canada process server is also a popular method of effecting service. The main benefit to the same may be tracing the whereabouts of an individual who is difficult to find, whereupon a private tracing service can be beneficial. Consequently, private Canada process servers are invaluable in being efficacious agents for performing the service of foreign legal documents in Canada.

The Hague Convention provides various models of Canada process service of documents such as by postal channel or by diplomatic/consular agents, judicial officers, officials, or other competent persons. These provisions are covered under Articles 8 to 10 and may or not be allowed by member countries as a valid mode of serving the documents in their territory. What Article 8 of the Hague Convention does is provide for a means of service apart from the ones done in the Hague Convention.  Article 8 provides that “each contracting State shall be free to effect service of judicial documents upon persons abroad,  without application of any  compulsion, directly through its diplomatic or consular agents.”

 The method of serving the documents through a central agency (Article 5) is not optional but is binding on all the member countries. Under the Hague Convention, each signatory has to designate a ‘Central Authority’ to accept incoming service requests. The Hague Convention specifies the form of these requests, mandating the form to be that of the USM-94. This is a Request for Service Abroad of Judicial or Extrajudicial Documents accompanying the American judicial process that is recognized by the Central Authorities of many of the foreign countries who are signatory to the Hague Service Convention.

[3.3.] DEFAULT JUDGMENTS

Service through a central agency falls within a bracket of 4 to 12 months. The Convention gives relief to the litigants if they have not received a service certificate or delivery from the central agency even after waiting for six months. In such cases, the court may consider that a reasonable time has elapsed, giving its judgment. In case of urgency, the court may issue a provisional order or protective measure even before the six-month waiting period. 

Article 15 of the Convention is the provision for default judgments.  It mentions that a judge is free to file a default judgment against a defendant and presume that service was proper under the Hague if [A.]  the document was properly transmitted to the correct Central Authority, [B.] at least six months have passed since the transmission of the document to the Central Authority, and [C.] the Central Authority has not issued a certificate even though the requesting party followed the requirements for service. This provision is important because it provides for a procedure in case the lack of service is not the fault of the individual who has addressed the documents to the respondent and provides a threshold for accountability to the Central Authority itself. 

While Canada Process Service is easier than in many countries, it is still vital to ensure that all documents must be attached are complete and concise. Furthermore, key documentation like the USM-94 needs to be signed by a court official or an attorney.  If this is not the case, it is necessary to verify that the person signing has actually been commissioned by the court.

For information on Canada Process Service, 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 A complete breakdown of the Hague Service Convention Articles by clicking here.

Sources

1. A huissier de justice (literally French for “justice usher”), sometimes anglicized as a judicial officer, is an officer of the court in France, Luxembourg, Belgium, Canada, Greece, Italy, and Switzerland. The officer is appointed by a magistrate of the court (or in France, by the Minister of Justice) and holds a monopoly on the service and execution of court decisions and enforceable instruments. Huissiers de justice also serves as formal witnesses to events (constat d’huissier) in the manner of a notary public.

2. Article 6

The Central Authority of the State addressed, or any authority which it may have designated for that purpose, shall complete a certificate in the form of the model annexed to the present Convention.

The certificate shall state that the document has been served and shall include the method, the place and the date of service, and the person to whom it was delivered. If the document has not been served, the certificate shall set out the reasons which have prevented service.

The applicant may require that a certificate not completed by a Central Authority or by a judicial authority shall be countersigned by one of these authorities.

The certificate shall be forwarded directly to the applicant.

3. Formal Service (Art. 5(1)(a))

4. Article 5

The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either –

a)  by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or

b)  by a particular method requested by the applicant, unless such a method is incompatible with the State’s law.

Subject to subparagraph (b) of the first paragraph, the document may always be served by delivery to an addressee who accepts it voluntarily.

If the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.

In the form attached to the present Convention, which contains a summary of the document to be served, that part of the request shall be served with the document.

5. The names and addresses of these provincial officials are listed in Canada Law List,

6. Firms providing these services are listed in Canadian telephone directories under “Process Servers”/”Huissiers Exploitants” and “Tracing Bureaus.”

7. Article 10: Provided the State of destination does not object, the present Convention shall not interfere with –

a) the freedom to send judicial documents, by postal channels, directly to persons abroad,

b) the freedom of judicial officers, officials, or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials, or other competent persons of the State of destination,

c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials, or other competent persons of the State of destination

HOW TO SERVE LEGAL PAPERS ON PATIENTS AT INSTITUTIONAL/TREATMENT FACILITIES

Health Care Facilities

By: Akanksha A. Panicker

The New York State Department of Mental Hygiene is a department of the New York state government. Its regulations are compiled in title 14 of the New York Codes, Rules, and Regulations. The department itself comprises autonomous offices that work in tandem to improve individuals’ mental hygiene, which is specified to be the [A.] New York State Office of Addiction Services and Supports (OASAS), [B.] New York State Office of Mental Health (OMH) and [C.]  New York State Office for People With Developmental Disabilities (OPWDD). The department was founded in 1926 as part of a restructuring of the New York state government and was given responsibility for people diagnosed with mental afflictions or epilepsy. 

New York State’s mental health statutes mandate citizens some protections. However, some rights may be excluded owing to medical necessity and are specifically delineated under the same.   Regardless of the living situation, patients have civil rights like [A.]   the right to register and vote in polls [B.] the right to ranking and appointment by civil service, and [C.]  the right to apply and get a warrant, permission, or privilege through civil law. All patients are covered throughout hospitals by the legislation against violence and mistreatment from staffers or other patients.

All patients in New York State’s recovery facilities are afforded several constitutional protections, as long as any other overarching statute does not compromise them. These fundamental personal rights guarantee a balanced and safe lifestyle, cleanliness, and religious freedom, to name a few. 

[1.0] UNDERSTANDING THE NEW YORK MENTAL HYGIENE LAW

Mental illness refers to an affliction with a mental disease or mental condition manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment, and rehabilitation. In this context, the New York State Mental Health Law requires a provider of services, responsible for the operation of a program or network of programs, to be accountable for the patient’s health and well-being. Such entity may be an individual, partnership, association, corporation, limited liability company, or public or private agency, other than an agency of the State, which provides services for persons with mental illness.

It must be noted that under this Act, the director or officer in charge of a facility cannot sanction the legal service of process upon any patient. An officer refers to an individual holding office in the New York State Office of Mental Health in this context. However, this is subject to exceptions wherein an order of a New York State court of record or a Federal court can be allowed for the same. This order must be specific and must demonstrate that the court had noticed that the person sought to be served on the date of the order of a patient in such facility. 

Additionally, some legal papers are exempt from this rule. Citations issued by the Surrogate’s Court for probate of wills, letters of administration, and final accounting do not fall within this bracket, as doesn’t the appointment of guardians for individuals who are mentally-deficient. Similarly, this would not apply to a notice of the petition for appointment of a committee or conservator and a notice of committee or conservator’s final accounting.

Even when this type of service of process is levied upon a patient, the director must be present in the room. If the Director is not available, one of their assistants or the officer in charge must be present. After service, a descriptive note is required to be entered into the patient’s case record, which should comprise a copy of the process served and a copy of the court order. Case record, clinical record, medical record, or patient record refers to the clinical record, which is information concerning or relating to the examination or treatment of an identifiable patient or client maintained or possessed by a facility that has treated or is treating such patient or client. This does not include data disclosed to a practitioner in confidence by other persons based on an express condition that such data would never be disclosed to the patient or client, or other persons.

It is pertinent to note that additional copies of any papers served must be provided. To [A.] the committee, conservator, or guardian of the patient or, if there be none, to the nearest relative or friend, together with an explanatory letter and [B.]the Mental Health Information Service. In the case of a State facility being the service site, a copy of the same must be furnished to the patient resource agent for the facility; and the Department of Law.

[2.0] REQUIREMENTS OF THE DIRECTOR

The director or officer in charge is responsible for distributing the legal papers served upon the facility and/or the patient. Consequently, the director must ensure that the service complies with the statutory requirements laid down. 

The process server must provide six copies of the service when service has been levied on a patient in a State facility. In a private facility, only four copies may be similarly mandated. Furthermore, no signature may be procured without the vouchsafing of the Director in the first instance. This means that no patient is allowed to sign any bill, check, draft, or other indebtedness evidence to make a will without the Director or officer in charge, specifically determining that the patient has the mental capacity and willingness to execute the same. The overarching rule also prevents the patient from executing any contract, deed, mortgage, or other legal conveyance, until after the determination that the patient has the mental capacity and willingness to execute the instrument has been made. The facts and circumstances surrounding such transaction, including the document to be executed by the patient, needs to be carefully scrutinized by the director or officer in charge, who shall also interview or cause the patient to be interviewed by a staff physician. 

This interview is significant in assessing the capacity of the patient first-hand. As reported to the director, the physician is responsible for comprehending the patient’s capacity altogether. This means that the patient’s ability to understand the impact of their transaction while also comprehending the ramifications and the action’s very nature must be assessed. Therefore, the consequences of executing and issuance of the instrument must be gauged to prevent mistreatment of the patient. Additionally, it must also be identified whether the patient is actually willing to sign and execute the instrument in the first place. While some patients might understand the consequences of their decision, they might also be brow-beaten from a place of vulnerability into signing the same. Consequently, the role of the caregivers, like the physician’s director, is to ensure that this does not occur. 

If the determination is that the patient has the mental capacity and is willing to execute the instrument, the director or officer in charge can allow the patient to execute the instrument. This, of course, is if the patient does not have a committee, conservator, or guardian who is equipped to make the said decision for them. Once consent has been issued, the director is then required to enter a descriptive note of the transaction. This issuance may either be entered by the director themselves or may be entered by an individual who has been qualified to do so by the director’s instruction. The interviewing physician’s certification must accompany the note of the transaction action that the patient [A.]  understood the nature and consequences of their actions in signing and executing the instrument and [B.] was willing to sign and execute the instrument.

If the patient has a committee, conservator, or guardian, or if the determination is that the patient does not have the mental capacity or the willingness to execute the instrument, the patient is not be permitted to execute the instrument. However, this edict might be overturned by a New York State court of record or a Federal court. This order must indicate that the court was cognizant that the individual was a patient and that the court has notice of the fact that the signature was obtained of the patient at a date where they remained in care as a patient. 

At this point, it must be noted that a patient is entirely allowed to endorse a cheque if the money is meant to be deposited in a bank account under their name. If this is in the case of a State facility, the patient is allowed to endorse a cheque that is to be deposited in their name in the facility’s business office.

[3.0] UNDERSTANDING THE MENTAL HYGIENE LAW IN CONTEXT OF THE HIPAA 

The privacy regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 (the privacy regulations) have impacted healthcare entities. However, the line between health information in the context of privacy and confidentiality of mental health information also needs to be considered. The effect of the same is less intense, especially since mental health providers already protect the sensitivity of the information they gather strongly.  New York’s Mental Hygiene Law protects the confidentiality of clinical records maintained at facilities licensed or operated by New York’s Office of Mental Health (OMH) or the Office of Mental Retardation and Developmental Disabilities (OMRDD). This is especially important in identifying patients or information that can be used to identify patients to any outside individual. Since these statutes require the patient’s written consent to allow their own identification to anyone except specified individuals or agencies, privacy is clearly regarded highly. 

Under the statutes, legal permission is imperative to allow disclosure of information. Authorized disclosures are necessary, especially for psychotherapy. Still, HIPAA is less stringent about health information, even allowing process servers to inquire whether the patient is present in the hospital. Hospitals may even be permitted to disclose a patient’s identity (as long as one has applied for the patient or details regarding the patient under the name), the person’s diagnosis, and the position of the individual (unless it includes information protected by HIPAA).  On the other hand, New York law specifies that disclosure of any information can be made only to entities that demonstrate the need for the information and who do not mean any detriment to the patient as well. 

The friction of law is apparent, and the test of demonstrable need is to be kept in mind in mental hygiene, especially.  Under HIPAA, If one is not sure if the person is injured, individuals may even call to check. HIPAA Rules do not preclude anyone from identifying themselves and requesting for a patient by name. In the past, hospitals restricted those categories of visitors to immediate family.  This strategy has been developed at most hospitals throughout North America, although it has slowly fallen out of favor.

When a person has been diagnosed and treated for substance abuse or medical treatment, it is sometimes complicated or unlikely to access details about them since inquiries in the hospital in which they are situated could reveal protected information regarding their care. In certain situations, patients may instruct the hospital not to disclose any details about them, which will mean that process servers may not identify where the individual to be served is at the hospital or where within the hospital they have been admitted. 

While New York law generally does not require consent for most treatment and payment purposes, healthcare operations classified under the privacy regulations (disclosure of PHI to auditors that are not government oversight entities or their designees, or disclosure to non-governmental entities for certain business planning and development purposes) is heavily reliant on consent under New York law. In contrast, the privacy regulations would not generally require any form of legal permission. 

Harmonious construction must be assumed for the benefit of the patient. If New York law would be more protective of the patient, it would probably not be pre-empted by the privacy regulations. The same would be considered vice versa for HIPAA privacy regulations. 

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 HIPPA Compliance A Complete Breakdown by clicking here.

Sources

1. Mental Hygiene Law § 5.01. “There shall continue to be in the state government a department of mental hygiene. Within the department, there shall be the following autonomous offices: (1) office of mental health; (2) office for people with developmental disabilities; (3) office of alcoholism and substance abuse.

2. As defined in section 1.03 of the Mental Hygiene Law

3. N.Y. Comp. Codes R. & Regs. Tit. 14 § 22.1

(a) Facility shall mean a hospital, school, or alcoholism facility. Such terms are defined in the Mental Hygiene Law for the inpatient care and treatment of the mentally ill, the mentally disabled, or the alcoholic.

(b) Private facility shall mean a facility that requires an operating certificate from the Commissioner of Mental Hygiene.

(c) Patient shall mean a person receiving services in a facility. It includes a resident in a school.

4. section 33.16 of the Mental Hygiene Law

5. Provided that such data has never been disclosed by the practitioner or a facility to any other person

 45 C.F.R. § 160.103.

6.Protected Health Information. The Privacy Rule protects all “individually identifiable health information” held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper or oral. The Privacy Rule calls this information “protected health information (PHI).”

7. New York’s Mental Hygiene Law section 33.

8. New York Consolidated Laws, Mental Hygiene Law – MHY § 33.16 Access to clinical records

INSTRUCTIONS ON SERVING THE NEW YORK SECRETARY OF STATE

New York

By: Akanksha A. Panicker

New York process service is stringent and comprehensive, and each jurisdiction has its own respective rules and guidelines. Often, regulations overlap with the service offered by various kinds of service providers.  The Secretary of State is the appointed legislative representative or statutory agent in New York for service of process

[1.0] HOW TO SERVE PROCESS ON THE SECRETARY OF STATE

Service of process on the New York Secretary of State as an agent of a corporation or other business entity may be accomplished by serving an authorized person at the New York Department of State’s office. The process is required to be brought to the Customer Service Counter located on the 6th Floor based on the Secretary of State’s instructions.

Only ‘process’ may be served on the New York Secretary of State in their capacity as agent. ‘Process’ in this context refers to judicial process and all orders, demands, notices, or other papers required or permitted to be personally served on a domestic or foreign entity, to acquire jurisdiction of such entity in any action or proceeding, civil or criminal, whether judicial, administrative, arbitrative, or otherwise, in this state or the federal courts sitting in, or for, this state. It must be noted that although the service of process has been delineated under the NY Business Corporation Law, New York State law as it has been laid down for service on the New York Secretary of State does not also prevent other methods or manners of service. It allows for service to be rendered via other means as long as it has been cleared through the relevant legislative and statutory requirements.

Service of process can occur upon a domestic or authorized foreign corporation, limited liability company, limited partnership, or limited liability partnership. However, this would mandate that two copies of the process have to be personally served on the New York Secretary of State. However, these copies could also be served upon an individual who has been specifically authorized to do so at the office. This does not mean that service may be done in any other form apart from personal delivery, as service by mail is not permitted. The statutory fee for the serving process is USD 40.

[1.1] SO WHAT HAPPENS IF THE CORPORATION IS UNAUTHORISED?

Service of process upon an unauthorized foreign or suspended corporation, limited liability company, limited partnership, or limited liability partnership has a different procedure to be completed adequately. If service must be initiated on a corporation that fulfills the above criteria, one copy of the process is required to be personally served on the New York Secretary of State. 

To serve process on the New York Secretary of State as a statutory agent of any person, corporation or other business entity, the Process Server will be required to [A.] identify the entity being served, [B.] properly obtain the DOS search pages for the entity that is to be served, [C.] appropriately fill out a service of process or notice of claim cover sheet and [D.] personally deliver the process with the requisite documents stapled to the same to an authorized individual at the office of the NY Department of State. 

In case the Secretary of State themselves are embroiled in an action or proceeding, the requisite service is achieved by serving the deputy secretary of state, as they have been authorized to fulfill the same. The secretary of state is enabled to accept properly transmitted notices of claims on behalf of a public corporation, with the same effect as if the service has been directly levied upon a public corporation. Certain conditions for the same are active, however, wherein a receipt of the notice must be issued upon receipt of service or that the public must be notified on the website of the secretary of the state. 

Of course, apart from quintessential law methods, service against a public corporation can be fulfilled via a notice of claim. The New York Secretary of State is authorized to accept the same as the public corporation’s statutory agent, under Section 53 of the General Municipal Law.  As the agent of said corporation, it is acceptable to serve any authorized individual at the DOS office. Like other forms of service, it is necessary to put forth two copies of the notice of claim, along with a fee of USD 250. 

Service upon a public corporation that has engaged in the filing of a Certificate of Designation for Service of Notice of Claim would mean that the DOS is required to serve only one copy of the Notice of Claim to the public corporation that is intended to be served at the address provided by them. It must be remembered that the Notice of Claim server is responsible for where the DOS sends the process. If the server identifies the wrong public corporation, then [A.]  the public corporation intended to be served will not receive the DOS mailing, and [B.] service will not be effective as against the public corporation intended to be served. In the case of service upon 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.

[2.0] SERVICE OF PROCESS ON THE SECRETARY OF STATE AS AGENT OF DOMESTIC AND AUTHORIZED FOREIGN ENTITIES

To begin the entire service chain, the Process Server should first decide who the target receiver is.  This is because more than one million domestic and international companies, alliances, and unincorporated organizations have been documented with the Department of State. In most circumstances, the name of the organization expected to be served is analogous to other organizations’ names. The process server, not the DOS, is liable for deciding the service user is intended to accept documents.  If a domestic or authorized foreign corporation has no such address on file, the secretary of state can mail a copy to the care of any director named in its certificate of incorporation at the director’s address stated. If the corporation is authorized but foreign, the copy’s mailing would be done to its office’s address within this state on file in the department.

[2.1] IDENTIFYING THE CLIENT CORPORATION FOR SERVICE 

The Process Server can supply the DOS with both the client company’s identity being handled and the presumed identification of the agency to be served. The DOS server may generate a list of organizations with equivalent or identical names to the one submitted by the process server. It is indeed the duty of the Process Server to decide which organization is the desired entity to be served.   If the organization’s real name originally planned to be served from the presumed name presented by the Process Server, the actual entity would likely not be included in the search results.

A process server with access to the official DOS database is qualified to perform its own search.

[2.2] OBTAINING THE STATUS INFORMATION OF THE CORPORATION 

The role of the process server is far from over after merely locating the entity to be served. Once the entity for service has been determined, it is necessary to obtain the current status information for the same. It is also necessary for process servers to collect the relevant information for the organization they are servicing from the DOS search pages.  When confirmed by the process server, the defendant will be provided with the corporation’s ‘Current Status Information.’  

Any skilled process server with access to the official DOS database that permits them to print out the initial DOS search pages may perform the search themselves. The Process Server will be required to complete a ‘Service of Process Cover Sheet’ indicating the name of the entity to be served, the section of the law under which service is being made, how the applicable fee is being paid, and the name and address of the Process Server.

[2.3] REQUIREMENTS THAT THE SERVER MUST COMPLETE

 The Process Server must hand-deliver two duplicate copies of the process being served. These copies must be attached with the Service of Process Cover Sheet and DOS Search page attached) and the applicable fee, to an authorized person at DOS’s office in Albany, New York.  The requirement for the same means that all personal delivery that constitutes service would have to include both the copy and the fee if it is levied on a domestic or authorized foreign entity. These stipulations are non-negotiable since the DOS is allowed to reject service if the copies are tampered with, altered, or are not duplicate copies in the first place. 

Furthermore, the DOS will presume that the entity intended to be served the entity that has erstwhile been identified in the DOS Search page stapled to the process documents served. The necessary due diligence is required to be conducted by the process server themselves. The DOS is merely obligated to mail one copy of the process to the entity served at the provided address. In case of a mistake in identification, service cannot be affected. 

It cannot be stressed enough that the liability for the process falls upon the server. The DOS presumes intention on the part of the process server to furnish the documents to the entity identified in the DOS Search Page attached to the process at the time of service. This holds even if the name does not match the name as it appears on the Service of Process Cover Sheet.

[3.0] ISSUES THAT COULD BE FACED IN SERVICE

The Secretary of State is the sole statutory agent for service of process on most corporate entities, not-for-profit corporations, limited liability companies, limited partnerships, and limited liability partnerships established in this State. However, it is also responsible for the process of most corporations, not-for-profit corporations, limited liability companies, limited partnerships, and limited liability partnerships which have been created under jurisdictions besides this State who submitted applications for permission to do business or perform operations in this State.  such entities are often referred to as ‘authorized foreign entities.’

In New York, the corporate defendant has only twenty days ‘after service’ to submit a response to the papers undertaking the litigation against it, which could fall short of enough time to find a lawyer and to bring the answer together. When service is rendered on the Secretary of State or an underling in the Secretary’s office, the Secretary of State is obliged to deliver a copy of said papers by certified mail directly, return receipt requested,  addressed to the corporation at the postal service address mentioned in the department of the state-designated for such a purpose. Therefore, although the secretary of state’s office would do its task and promptly send the papers to the entity by U.S. mail, some very pivotal days out of the twenty will already have been lost in the mailing process alone.

Since New York legislation forbids a domestic company from being created or a foreign corporation from being allowed to do business in New York until its certificate of incorporation or application for authorization designates the secretary of state as the corporation’s agent for service of process, there is little that a corporation that does business in New York may do with making the secretary of state serve as its designated agent for service of process in New York. But if the corporation is uncertain regarding obtaining process promptly, the company can, at its discretion, then appoint a registered agent in New York, acting as an additional agent against whom process against the corporation can be served.

The registered agent so appointed must be either a natural person who is a citizen or has a work address in New York or a domestic entity founded in New York or even a foreign corporation approved to do business in New York. If the corporation designates a registered agent in New York, perhaps the corporation could obtain process more rapidly, but only because the plaintiff prefers to serve the registered agent instead of the state secretary. The main drawback is the additional burden of employing an outside corporation to serve as the corporation’s resident agent in New York if it chooses to go that route.

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

2. Division of Corporations, State Records and Uniform Commercial Code, NYS Dept. of State, https://www.dos.ny.gov/corps/faq_service_of_process.page.asp (last visited Jan 18, 2021)

3. Service of process is accepted under the following sections of New York State Law: Sections 306, 306-A, and 307 of the Business Corporation Law; Sections 306 and 307 of the Not-for-Profit Corporation Law; Sections 301-A, 303, and 304 of the Limited Liability Company Law; Sections 121-104-A, 121-109, 121-1505, and 121-1506 of the Partnership Law

4. See §102(a)(11) of the Business Corporation Law, §102(a)(12) of the Not-for-Profit Corporation Law, §102(x) of the Limited Liability Company Law, §121-101(o) of the Partnership Law

5. New York Consolidated Laws, Business Corporation Law – BSC § 306. Service of process

(a)Service of process on a registered agent may be made in the manner provided by law for the service of a summons as if the registered agent was a defendant.

(b)(1)Service of process on the secretary of state as an agent of a domestic or authorized foreign corporation shall be made by personally delivering to and leaving with the secretary of state or a deputy, or with any person authorized by the secretary of state to receive such service, at the office of the department of state in the city of Albany, duplicate copies of such process together with the statutory fee, which fee shall be a taxable disbursement. Service of process on such corporation shall be complete when the secretary of state is so served. The secretary of state shall promptly send one of such copies by certified mail, return receipt requested, to such corporation, at the post office address, on file in the department of state, specified for the purpose. If a domestic or authorized foreign corporation has no such address on file in the department of state, the secretary of state shall so mail such copy, in the case of a domestic corporation, in care of any director named in its certificate of incorporation at the director’s address stated therein or, in the case of an authorized foreign corporation, to such corporation at the address of its office within this state on file in the department.

(2)An additional service of the summons may be made under paragraph four of subdivision (f) of section thirty-two hundred fifteen of the civil practice law and rules.

(c)If an action or special proceeding is instituted in a court of limited jurisdiction, service of process may be made in the manner provided in this section if the office of the domestic or foreign corporation is within the territorial jurisdiction of the court.

(d)Nothing in this section shall affect the right to serve process in any other manner permitted by law.

6. or any person authorized by them at the Office of the New York Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231

7. Process should be brought to the Customer Service Counter located on the 6th Floor.

8. The General Construction Law definition of ‘public corporation’ includes municipal corporations, district corporations, and public benefit corporations.  It does not include publicly traded corporations.

9. New York Consolidated Laws, General Municipal Law – GMU § 53. Alternative service of notice of claim upon the secretary of state

All public corporations entitled to have served upon them notice of claim as a condition precedent to the commencement of an action or proceeding shall, no later than thirty days after the date upon which this section shall take effect, file a certificate with the secretary of state designating the secretary as the agent for service of a notice of claim and shall in such statement provide the secretary with the name, post office address and electronic mail address, if available, of an officer, person, or designee, nominee or other agent-in-fact for the transmittal of notices of claim served upon the secretary as the public corporation’s agent. Any designated post office address or electronic mail address to which the secretary of state shall transmit a copy of the notice of claim served upon him or her as agent shall continue to be the address to which such notices shall be transmitted until the public corporation sends a notice to the secretary informing him or her of a new post office address or electronic mail address to which such notices shall be transmitted. 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 under subdivision four of this section. Failure of the public corporation to so file with the secretary of state will not invalidate any service of a notice of claim upon the public corporation received by the secretary of state.

10. Notice of Claim should be brought to the Customer Service Counter located on the 6th Floor. The Customer Service Counter is open from 9:00 a.m. to 4:30 p.m. Service by mail is not permitted

11. The New York State, Department of State, Division of Corporations, State Records, and Uniform Commercial Code

12. This includes the ‘Filing History Information’ and/or the ‘Name History Information’ ‘Current Status Information,’ as well as any ‘Filing History Information’ and/or ‘Name History Information’ referred to as ‘DOS Search Page(s).’.

13. E.g., Changing the name of the defendant 

See, e.g., Rule 312-a. Personal service by mail.

14.Completion of service and time to answer.

    1. Where a complaint or petition is served with the summons or notice of petition, the defendant shall serve an answer within twenty (20) days after the date the signed acknowledgment of receipt is mailed or delivered to the sender