New York Passes Bill to Protect Process Servers

Governor Andrew Cuomo has signed into law bills S2991-A / A6772-A making an assault on a process server, among other professionals, a felony. The law will go into effect on November 1, 2016.

Adding “process server” to the list of those deserving special protection, an assault on a process server would become a class D Felony. An assault is when the person “inten[ds] to cause serious physical injury to another person, he causes such injury to such person or to a third person.”

NY combines both the crime of assault and battery into a single law. California, for instance, makes it a crime for assault (imminent threat and present ability to cause serious injury) and battery (the unlawful contact resulting in injury). Those statutes are found in Penal Code secs. 241 (assault) and 242 (battery).

This NY law does more than protecting process servers from an assault.

The law also amends NY Penal Law 120.05, adding a new sub-division 14:

With intent to prevent or obstruct a process server, as defined in Section eighty-nine-t of the general business law, from performing a Lawful duty pursuant to article three of the civil practice law and Rules, or intentionally, as retaliation against such a process server For the performance of the process server’s duties pursuant to such Article, including by means of releasing or failing to control an animal Evincing the actor’s intent that the animal prevent or obstruct the Lawful duty of the process server or as retaliation against the process Server, he or she causes physical injury to such process server.

It also appears to add a crime of obstructing a process server from performing a lawful duty of serving process, or in retaliation. This the 19th state and the Federal law which makes it a crime to obstruct service. (See a list of those laws here.) The law also further prohibits the use of an animal to obstruct or retaliate if the server sustains physical injury, implying that there is no obstruction or retaliation with an animal without an injury. Intimidation is OK, but not obstruction or retaliation without physical injury. There seems to be an unintended distinction between culpability between the assault resulting in “serious physical injury”, and the obstruction or retaliation with an animal resulting in “any physical injury”.

This is going to help NY process servers, and could spread to other states looking for an opportunity to pattern a similar law elsewhere.

View a discussion on the Process Server Institute Facebook page or comment below.

Servicemember’s Civil Relief Act

This is a post I made on a listserve in 2009 when another process server posted that he was not going to serve a document on a defendant because he was in the active military service.

This summary addresses what the Servicemember’s Civil Relief Act is, and explains in general terms what a server might need to know about it.

There seemed to be a gulf of confusion over this law, especially when serving someone in the military.

In each state and at the the federal level, laws have been enacted to protect service members in the active military. The laws date back to the Civil War when a moratorium was passed to suspend certain actions against Union soldiers and sailors for contract enforcement, bankruptcy, foreclosure and divorce proceedings. It was codified in federal statutes after World War I and II. The law was amended in 2003 (and now through 2012) and is commonly known as “Servicemember’s Civil Relief Act” (SCRA). It relates only to debts incurred prior to when the debtor enters active military service. The federal law is found at 50 U.S.C. App §§ 501-596.

This link takes you to a easy-to-understand summary of the law:

Before a default judgment is enforced against an individual, their military status must be verified by affidavit.  These are often referred to as non-military affidavits, affidavits of military status, etc.)

That is why a process server is asked to determine whether the defendant is in the active military service.  Some state laws, notably in New York, require a statement to be included in the affidavit of service. Other states, such as California, require the affidavit to accompany the request to enter default later during the course of the litigation.

It does not affect what a process server does when serving a lawsuit. A server should serve the document and service establishes jurisdiction over the defendant.

The SCRA protects the servicemember rights from a variety of SUBSEQUENT activities that can occur in the litigation, such as a stay of the proceedings, stay of execution, or a default judgment.

Furthermore, the servicemember’s time in the service cannot be used to extend the statute of limitations, especially as it relates to service. If a federal or state rule requires service within a particular amount of time after filing the complaint, the SCRA does nothing to affect the time deadline for service.

Therefore, if you, as a process server, think you are doing someone a favor by not serving the person because he or she is in the military service, think again. If you blow a statute because of your deference to the defendant’s military status, you may find yourself on the ugly end of a claim by the plaintiff for not performing the service.