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U.S. Bank Natl. Assoc. v Murillo | NYSC Judge Winslow Vacates Judgment “Sewer Service, No Process Records = Null & Void Service”

U.S. Bank Natl. Assoc. v Murillo | NYSC Judge Winslow Vacates Judgment “Sewer Service, No Process Records = Null & Void Service”


SUPREME COURT – STATE OF NEW YORK

U.S. BANK NATIONAL ASSOCIATION, AS
TRUSTEE THE STRUCTURED ASSET INVESTMENT
LOAN 2005-10,
Plaintiff,

-against-

SOLEDAD MURILLO, LUIS DUQUE, BANK
UNITED, FSB,
Defendants.

EXCERPTS:

The process server, Gary Cardi, testified that he was a six-year “self employed”
former Police Officer, and that he received service assignments from A&J Process
Service, which was located on the same floor, at the same address, as the local business
office of plaintiff’s counsel , Steven J. Baum, PC. Mr. Cardi stated that on April 5, 2008
at approximately 11 :30 a. , he served the Summons and Complaint upon Soledad Murilo
personally pursuant to CPLR 308(1) and upon the co-mortgagor Luis Duque by
substituted service pursuant to CPLR 308(2). According to Mr. Cardi, service was made
at defendants ‘ home, 934 Southern Drive , Franklin Square, New York, with additional
mailings to the same address.

[…]

In response, Mr. Spinell argued, essentially, that the failure to keep or produce
records is of no consequence. “Since Nassau County, as I am aware of, does not require a
process server to be licensed, the process server cannot be mandated or penalized for
failng to maintain records required of licensed process servers. As a matter of law, failure
to keep records shall not automatically void purported service and this can be found in the
Appellate Division case Feierstein versus Mullan under 120 Misc2d 574, 467 NYS2d 478
Appellate Term 1983.

Mr. Spinell is wrong. Article 8 and Article 8-A of the General Business Law
govern the duties of process servers. GBL Artcle 8 applies to all process servers (who
meet the statutory definition), and GBL Article 8-A (not applicable here) applies to all
process servers in eities having a population of one milion or more. Under GBL Article
, a process server is defined as a person, other than an attorney or a par to an action
acting on his own behalf, who (a) derives income from the service of papers in an action;
(b) has effected service in five or more actions or proceedings in the twelve month
period immediately preceding the service in question. GBL ~89-t. The definition does not
distinguish between licensed or unlicensed process servers. Thus, even if Nassau County
does not presently require a process server to be licensed, all process servers are subject to
the State s record keeping mandate, and may be penalized for non-compliance. GBL ~
89-u requires each process server to maintain a legible record of all service made by him
as prescribed by that section, and specifies the information required in the log. Compliance
with GBL ~89-u is subject to enforcement by the attorney general, and civil penalties may
be imposed. GBL 89-v. (The licensing requirement, imposed upon process servers by
local ordinance, mayor may not coincide with the more stringent statutory requirements
applicable to process servers in cities having a population of one milion or more. See
GBL Article 8-A; GBL 89-cc.

Mr. Spinellj’ s legal argument – that the failure to maintain records does not void
purported service — is invalid. The case cited by Mr. Spinell, a 1983 decision of the
Supreme Court, Appellate Term, First Deparment, is neither controllng nor relevant.
That case held that non-compliance with the licensing provisions of the New York City
Administrative Code was not grounds for dismissal.

See Feierstein v. Mullan, 120
Misc.2d 574. The Feierstein case did not deal with the record-keeping requirements of
GBL Article 8 or Article 8-A. Mr. Spinell has not cited, and the Court’ s own research
has not revealed, any authority for the proposition proffered by Mr. Spinell, nor any
controllng authority on the issue at bar.

This Court holds – seemingly for the first time – that the failure, at a traverse
hearing, to produc( records kept in accordance with the requirements of GBL 89-u may
result in dismissal of the action. The Court adopts the reasoning articulated by its
companion court in First Commercial Bank of Memphis v. Ndiaye, 189 Misc.2d 523
(Sup. Ct., Queens Co., 2001). See also Inter-Ocean Realty Assoc. v. JSA Realty Corp.,
152 Misc.2d 901 (Civ. Ct., NY County, 1991). In First Commercial Bank, a foreclosure
action, the licensed process server produced a computer-generated log book at a traverse
hearing. The Court found that this method of record-keeping failed to comply with the
precise requirements of GBL 89-cc and local regulations applicable to licensed process
servers in New York City. The Court noted that the purpose of these record-keeping
requirements was ‘C combat the continuing problem of process serving abuse, known as
sewer service,” and to ensure the reliabilty of the records presented in support of
jurisdiction. Accordingly, the Court held that the testimony of the process server who
failed to keep records in accordance with the statutory requirements could not be credited.
This failure to keep appropriate records was considered a failure to comply with the rules
of the court regarding the production of records at a traverse hearing.
See 22 NYCRR ~20S.29. The Court held that, absent a showing of good cause for non-compliance, the
underlying cause of action should be dismissed for lack of jurisdiction.

[…]

ORDERED, that the application of defendant Soledad Murilo, to vacate the
Judgment in this action pursuant to CPLR 5015(a) (4) is granted. The court determines
that the purported service upon defendants is null and void, and the matter is dismissed for
lack of jurisdiction. This constitutes the Order of the Court.

[ipaper docId=77837320 access_key=key-1e1wuu0gk8r2rancr6o7 height=600 width=600 /]

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