NYSPPSA filed a 47 page lawsuit on February 26th against the City of New York, Michael Bloomberg, Mayor Bill DiBlasio and over 25 members of the New York City Department of Consumer Affair, including two administrative Law Judges. A request for a temporary injunction will be made before the Hon. Denise Cote, Judge of the United States District Court, Southern District of New York on Friday, March 7 2014.
Temporary injunctions, particularly those against municipalities, are notoriously difficult to obtain. While the law years ago allowed for ex parte applications, today’s rules call for the defendant to be notified and appear in court to contest the application. If successful, the temporary injunction would be a landmark for process servers in New York City. The injunction would prevent further action by the DCA until the conclusion of the case, meaning they would be unable to issue subpoenas, adjudicate or repeal licenses.
The last time NYSPPSA pursued litigation in February 2011 they were able to receive a partial injunction on a particular clause. That clause later wound up being removed through the rules NYSPPSA counter-proposed.
The complaint cites four primary issues:
- The adjudication of process servers was caused without a legal basis to do so
- Subpoenas were issued which contained express directives preventing the recipients from notifying anyone of their existence, violating their right to counsel
- Process servers were found in violation based on unsworn testimony or proof beyond a reasonable doubt, violating due process rights
- Fines were in excess of amounts permitted under rules and statutes
The case is being handled on a contingency basis, which is great news for an association that has spent over $187,000 in the past several years fighting the new DCA rules. With documentary evidence of everything alleged in the suit, NYSPPSA is hopeful there will be a positive outcome to the suit. The suit seeks to impose a long term injunction until the rules are corrected along with exemplary and/or punitive damages.
“Generally, process servers as a group are not a litigious bunch. We see enough of that on a daily basis. However, this has become an arbitrary and capricious system resulting in bully tactics and legislation by coercion to create a mood of fear among process servers”, says Larry Yellon, President of NYSPPSA, in explaining the need to move forward with the lawsuit.
With process server license renewals down 60% from two years ago, it will be interesting to see what the numbers look like after the 2014 renewals deadline of April 30 2014.
Read a full copy of the complaint here.
