PL H



Dept. of Consumer Affairs v. Martin Goldstein

CITY OF NEW YORK

DEPARTMENT OF CONSUMER AFFAIRS

| |DECISION AND ORDER |

|DEPARTMENT OF CONSUMER AFFAIRS, | |

| |Violation No.: LL5084005 |

|Complainant, | |

| |License No.: 864487 |

|-against- | |

| |Respondent’s Address: |

|MARTIN GOLDSTEIN, |1790 Front Street #30 |

| |East Meadow, NY 11554 |

|Respondent. | |

| |Date: April 19, 2005 |

| | |

A hearing on the above-captioned matter was held on February 27, 2005.[1]

Appearances: For the Department: Romben Aquino, Esq. For the Respondent: Martin Goldstein, respondent.

The respondent is charged, as set forth in the Amended Notice of Hearing, with violating the following:

1) Title 6 of the Rules of the City of New York (“6 RCNY”) Section 2-233(b)(5), by not keeping records in a suitably bound volume;

2) 6 RCNY Section 2-233(a)(2), by failing to include required information in his records;

3) 6 RCNY Section 2-233(a)(3), by failing to include a description of the person served in his records;

4) 6 RCNY Section 2-233(a)(5), by failing to indicate in his records the dates that he filed affidavits of service with the court in which the action had been commenced;

5) 6 RCNY Section 2-233(b)(2), by failing to indicate the person or firm from whom the process served was received;

6) 6 RCNY Section 2-235, by failing to sign all four affidavits of service and by not having three of the affidavits notarized;

7) New York City Administrative Code Section 20-101, based upon the foregoing, by failing to maintain the standards of honesty, integrity and fair dealing required among persons and organizations engaged in licensed activities.

Based on the evidence in this case, I RECOMMEND the following:

Findings of Fact

Respondent pleaded guilty to charge 1; accordingly, adduced evidence as to this charge will not be considered.

Respondent is a process server licensed by the Department. In his career as a process server, respondent has served five judicial subpoenas.

Four judicial subpoenas duces tecum were served on behalf of attorney Kenneth Shapiro, Esq., Waxman & Wincott, 7600 Jericho Tpk., Woodbury, NY 11797, in the case of Zeev Dadabaev v. ACA Car & Limo & Zakhar Musheyev, Index No. 25062/02 (Supreme Court, Queens Co.), as follows: (a) on EMS Tech #4405, Metrotech Center, Brooklyn, New York, on September 21, 2004, 3:00 p.m; (b) Emergency Medical Services, Metrotech Center, Brooklyn, New York, on September 21, 2004, 3:00 p.m.; (c) Mary Immaculate Hospital, 152-11 89th Ave., Jamaica, New York, on September 24, 2004, 11:10 a.m.; and (d) North Shore University Hospital at Forest Hills, 102-01 66th Road, Forest Hills, on September 24, 2004, 1:15 p.m. Respondent signed the respective affidavits of service of these subpoenas contemporaneously with their service; his signatures were not notarized.[2]

On September 23, 2004, 3:50 p.m., the Respondent also served a subpoena on Lutheran Medical Center – Medical Records, on behalf of Joseph A. Faraldo, Esq., 125-10 Queens Blvd. – Suite 12, Kew Gardens, NY 11415, in the case of Maria Trakas v. Nancy A. Bellia, Index No., 23926/02 (Supreme Court, Kings Co.). Lutheran Medial Center admitted to the service of the subpoena upon it when this subpoena then was served by respondent.

On September 28, 2004, “office copies” of affidavits of service respecting four of these subpoenas were produced by the Respondent in response to the Department’s certain subpoena issued on or about September 14, 2004 requesting production of respondent’s complete records of his activity as a process server. (No record respecting the Emergency Medical Services subpoena then was produced.) Respondent then had to retrieve these documents from the attorneys who had requested service from him.

Opinion

Respondent does not dispute the credible evidence as to those particular records which Respondent did, and did not, then produce in response to the Department’s subpoena. I credit respondent’s credible testimony and evidence as to the services of subpoenas he effected, including, without limitation, on whose behalves, the dates and times services were effected, non-filing of affidavits of service, the persons upon whom service was effected and the manner and timing he retrieved copies and originals of the subpoenas, and original affidavits of service thereof and/or evidences of admissions of service, from the attorneys requesting these services. The Department presented no evidence in rebuttal.

6 RCNY Section 2-233 (“Records”) provides, in pertinent part:

“(a) Duty of individual licensee to keep records. Each process server shall keep records in compliances with the provisions of [section] 89-c [now denominated as 89-u] of the General Business Law, as follows:

1) Each process server shall maintain a legible record of all service made by him as prescribed in this section.

2) The record to be maintained shall include the following information, where applicable:

i) the title of the action;

ii) the name of the person served, if known;

iii) the date and approximate time service was effected;

iv) the address where service was effected;

v) the nature of the papers served

vi) the court in which the action has been commenced;

vii) the index number of the action, if known.

2) If service is effected pursuant to subdivisions one, two or three of section three hundred eight of the civil practice law and rules, the record shall also include the description of the person served, including, but not limited to, sex, color of skin, hair color, approximate age, height and weight and other identifying features.

* * *

5) If the process server files an affidavit of service with the court, his record shall include the date of such filing….”

The above-stated requirements parallel provisions contained in General Business Law sections 89-u (formerly denominated, from certain dates from 1973 to 1993, section 89-c) and 89-cc (the latter for cities such as New York City, having a population of one million or more).

An additional regulation promulgated pursuant to the authority provided by New York City Administrative Code Section 20-408, 6 RCNY Section 2-333, further provides, in pertinent part:

(b) Licensees who serve process shall also include in their records the following:

* * *

2) The person or firm from whom the process served was received.

* * *

(5) Records shall be kept in chronological order in bound, paginated volume.

The strictures of the Department’s record-keeping provisions serve the regulatory goal of assuring honest service practices, Matter of Stephen Barr v. Department of Consumer Affairs, 70 N.Y.2d 821, 832, 523 N.Y.S.2d 435, 517 N.E.2d 1321 (1987); accord Matter of Zaida Farnham v. City of New York, 139 A.D.2d 579, 527 N.Y.S.2d 253 (2d Dep’t 1988); see also First Commercial Bank of Memphis, N.A. v. Ndiaye, 189 Misc.2d 523, 733 N.Y.S.2d 562 (Sup. Ct. Queens Co. 2001) (underlying purpose of General Business Law section 89-cc and 6 RCNY section 2-233 is “to prevent and deter the abuses inherent in ‘sewer service’”, i.e., “a practice of filing false affidavits of service, when in fact no service at all was accomplished”). The requirements of records to be kept in chronological order in a bound, paginated volume and recording the person from whom process was received (if received from a process serving agency), also are statutory for cities, such as New York City, with a population of one million or more. General Business Law sections 89-cc(1) and 89-cc(2)(i).

On the record of the hearing, respondent pleaded guilty to failure to maintain his records in a bound, paginated volume, i.e., a record book. The maintenance of a log book, required both by state statute (General Business Law section 89-cc) and Departmental regulation (6 RCNY Section 2-233(b)(5)) must be considered the most important of the process server provisions, even where, as here, there is no evidence that a process server falsified records or testified untruthfully about attempted services.[3]

Here, it is undisputed that, in addition to failing to keep a proper record book, as to one judicial subpoena, the respondent did not produce to the Department any other records reflecting the required information. Accordingly, the credible evidence is that with respect to this one service of process, respondent did not maintain a record of all the information required to be maintained by 6 RCNY Section 2-233(a)(2).

Even if respondent had kept a record book, under the circumstances, he would not have been required to record the information required to be recorded therein by 6 RCNY Sections 2-233(a)(3) and (a)(5).

6 RCNY Section 2-33(a)(3) requires that respondent’s “record shall also include the description of the person served…” but only in the cases where “service is effectuated pursuant to [specified subdivisions] of [CPLR Section 308].” CPLR Section 308 specifies statutory methods of service upon a “natural person.” None of the judicial subpoenas served by the respondent were upon “natural persons” (i.e., individuals) but rather juridical entities.

RCNY Section 2-233(a)(5) requires respondent’s record also include the date of any filing of an affidavit of service with the court. The Department made no showing that respondent filed “an affidavit of service with the court.”

The credible evidence establishes that respondent did not include in his records a designation of the “person or firm from whom the process served was received” (e.g., the particular service agency, attorney or law firm), as required by 6 RCNY Section 2-233(b)(2). Contrary to respondent’s argument, although the subpoenas themselves indicate the issuing attorneys, said attorneys are not necessarily the “person[s] or firm[s] from whom the process served was received.”

6 RNCY Section 2-235 (“Preparation of Affidavits of Service”) provides, in pertinent part, that:

“No licensee shall sign or notarize or cause to be signed or notarized an affidavit of service until all factual averments have been set forth….”

The Department’s allegations that respondent’s failure to sign four affidavits of service and to notarize three of them, even if taken as true, does not establish a prima facie case of violation of 6 RCNY Section 2-235.[4] This rule does not require affidavits be signed or notarized by a process server; it only circumscribes the circumstances when the process server does so. Moreover, I credit respondent’s testimony and evidence that he had signed three of the affidavits of service; I credit respondent’s testimony that he signed a fourth of the affidavits of service; and, as to the fifth, there was a written admission of service.

New York City Administrative Code Section 20-409(a) provides that a process server license “may be suspended or revoked … at any time for the failure of the licensee to comply with any rule [or] regulation … promulgated by the commissioner.” The Department requests that respondent’s license be revoked based on the predicates of the cited violations of its regulations and non-notarization of his signature on affidavits of service, thereby purportedly demonstrating respondent’s unfitness as a licensee pursuant to New York City Administrative Code Section 20-101.

The Department cites the Barr and Farnham cases, cited supra, in support of its position that respondent’s license should be revoked. In Barr, supra, a process server’s license was revoked and he was fined $4,900. because of his maintenance of illegible records, his omission of necessary information about process served and his failure to record the type of service effectuated. In addition, he filed affidavits of service averring service at a time different from the time recorded in his log and had log notations purporting to record service at different locations at times too close to be true. In Farnham, supra, a process server’s license was suspended for six months and she was fined $4,125 because she routinely failed to comply with five record-keeping requirements, she filed eleven affidavits of service containing information that conflicted with her logs, she resisted producing records for review and she made unlicensed service of process on 25 occasions.

In my opinion, without mitigation of respondent’s actions, they simply do not arise to the same level of evident regularized fabrication of records and service demonstrated in these cited cases. In this matter, the Department amply has demonstrated respondent’s failure to maintain required records of his service and in the manner required by statute and Departmental rules. Moreover, respondent’s signature of affidavits of service without notarizations renders them incompetent as proofs of service. It is my opinion that a 60-day suspension of respondent’s license, rather than requested revocation, is warranted given that there is there is no showing of “sewer service” (i.e., actual service had not been effected) or of previous consumer or departmental complaints against this respondent. Cf. DCA v. Liberty Pawn Shop, Inc., CD500080649 (Decision, ALJ Mitchell B. Nisonoff, December 29, 2004) (collateral loan broker license suspended for 60 days in matter where stolen consumer property not safeguarded).

Order

The respondent is found guilty of charge numbers 1, 2, 5 and 7.

The respondent is ordered to pay to the Department a TOTAL FINE of $1,350. as follows:

Charge 1: $500

Charge 2: $500

Charge 5: $350

The respondent is found not guilty of charges 3, 4 and 6, and these charges are DISMISSED.

The license is SUSPENDED for 60 days. The suspension shall be effectively immediately. If the respondent’s license document is not confiscated by the Department, the respondent is directed to surrender its license document to the Licensing Division within ten (10) days of the date of this Decision. Once the suspension period expires, the respondent may, if all fines are paid and administrative requirements met, retrieve its license document from the Licensing Division.

Failure to surrender the license document shall constitute grounds for additional suspension or revocation of the license. If the respondent continues to operate during the period of suspension, it is subject to CRIMINAL PROSECUTION and/or civil penalties of $100 per day for each day of unlicensed activity, as well as the closing of its business and/or the removal of items sold, offered for sale, or utilized in the operation of its business, pursuant to the Administrative Code of the City of New York Sections 20-105 and 20-106 (the “Padlock Law”).

This constitutes the recommendation of the Administrative Law Judge.

__________________________

Mitchell B. Nisonoff

Administrative Law Judge

DECISION AND ORDER

The recommendation of the Administrative Law Judge is approved.

This constitutes the Decision and Order of the Department.

___________________________

Nancy J. Schindler

Deputy Director of Adjudication

cc: Romben Aquino, Esq.

Litigation and Mediation Division

NOTICE TO RESPONDENT(S): If you wish to APPEAL this decision, or file a MOTION FOR REHEARING, you must file your appeal or motion with the Director of Adjudication, Department of Consumer Affairs, 66 John Street, New York, NY 10038, within 30 days of the date of this decision. You must include with your appeal or motion (1) a check or money order payable to the Department of Consumer Affairs for the sum of $25; and (2) a check or money order payable to the Department of Consumer Affairs for the amount of the fine imposed by the decision, or an application for a waiver, based upon financial hardship, of the requirement to pay the fine as a requisite for an appeal, supported by evidence of financial hardship including the most recent tax returns you have filed. In addition, you must serve a copy of your appeal or motion for rehearing, and any related documents, on the Litigation and Mediation Division of the Department of Consumer Affairs, 42 Broadway, 9th Floor, New York, NY 10004.

-----------------------

[1] I granted both parties leave to file post-hearing briefs and the respondent leave to submit post-hearing evidence. I now have received and considered: (a) the Department’s brief dated March 7, 2005; (b) Mr. Aquino’s letter; and (c) Mr. Goldstein’s brief dated March 28, 2005. To date, respondent has not submitted post-hearing evidence.

[2] The original affidavits of service of the Emergency Medical Services, North Shore University Hospital and Mary Immaculate Hospital subpoenas contain his signatures, and I credit respondent’s testimony that he signed all four affidavits of service, including that respecting the EMS Tech #4405 subpoena (served at the same place and time as the Emergency Medical Services subpoena).

[3] For example, at least one court has refused to uphold service of process by reason of a process server’s failure to produce its records in the required bound, paginated format. Silvestri v. Mandrell, NYLJ, December 18, 1991, at 24, col. 6 (Civ. Ct., Kings Co.) (cited with approval by First Commercial Bank of Memphis, N.A. v. Ndiaye, supra). See also First Commercial Bank of Memphis, N.A. v. Ndiaye, supra, in which the court sustained the traverse and determined that the service of process was defective, where the process server kept a computer-generated “log book” rather than follow the specified record-keeping and record-corrective requirements of General Business Law section 89-cc and 6 RCNY section 2-233(b)(6). This court stated that, “[t]he purpose of these record-keeping provisions was to ‘substantially enhance the State’s ability to combat the continuing problem of process serving abuse known as ‘sewer service,’” 189 Misc.2d at 525 (quoting from legislative history documents), and determined that “[t]hese computer records are … unreliable when measured against the statutory criteria,” id. at 526.

[4] In contradistinction, General Business Law section 89-ee(1) (applicable to cities having a population of one million or more) requires that “[i]t shall be unlawful for a process server to fail to comply with all legal requirements for the service of process” and 6 RCNY Section 2-234 requires a licensed process server to “strictly and promptly conform to all law, rules, regulations and requirements … relating to … the preparation, notarization and filing of affidavits of service….” For example, CPLR Section 306(d) and (e) requires that proof of service be made by “an affidavit” if made by a person other than a sheriff or other authorized public officer or by a writing admitting service by the person to be served; and General Construction Law Section 12 requires that affidavits be “sworn to before any office authorized by law to take the acknowledgement of deeds of this state, unless a particular officer is specified before whom it is to be taken.”

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