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First Commercial Bank of Memphis, N.A. v. Ndiaye

Other Lower Courts

July 9, 2001

First Commercial Bank of Memphis, N. A., Formerly Known as Federal Savings Bank, Plaintiff,
v.
Alioune Ndiaye et al., Defendants.

Page 524

COUNSEL

Katherine Vasilopoulos, Forest Hills, for Alioune Ndiaye, defendant.

Barry R. Carus, P. C., Syosset (Michael C. Manniello of counsel), for plaintiff.

OPINION

Charles A. LaTorella, Jr., J.

In this mortgage foreclosure action, defendant homeowner moves to dismiss the complaint, alleging lack of personal jurisdiction. The defendant contends that the court never acquired jurisdiction over him because service of process was improper. It is asserted that the process server, licensed in the City of New York, failed to comply with General Business Law § 89-cc and 6 RCNY 2-233, promulgated by the Department of Consumer Affairs. This court granted a traverse hearing.

The question presented is whether computer records comply with the precise record-keeping requirements of General Business Law § 89-cc and 6 RCNY 2-233. This court holds that they do not, and that service was therefore invalid. If computer records are to be acceptable, it is the Legislature which must declare them so.

At the traverse hearing, the process server, Ms. Annie McCargo, produced a computer-generated " log book." All but one of the pages are attached in accordion fashion as a result of a single continuous printout. The pages are secured in a binder. Ms. McCargo testified that data entries were made by the office that employed the process server, rather than by the process server herself. There was no system in place for verification of data accuracy.

Both section 89-cc of the General Business Law, entitled " process server records," and section 2-233 of the Department of Consumer Affairs Regulations (6 RCNY) governing licensed process servers, set forth very detailed, precise requirements for the keeping of records by licensed process servers. Their underlying

Page 525

purpose is to prevent and deter the abuses inherent in " sewer service." The latter term refers to a practice of filing false affidavits of service, when in fact no service at all was accomplished.

The statute (General Business Law § 89-cc) provides that a licensed process server maintain and produce a log book detailing service of process, stating in relevant part:

" 1. Each process server shall maintain a legible record of all service made by him as proscribed in this section. Such records shall be kept in chronological order in a bound, paginated volume. Corrections in records shall be made only by drawing a straight line through the inaccurate entry and clearly printing the accurate information directly above the inaccurate entry. All other methods of correction, including but not limited to erasing, opaquing, obliterating or redacting, are prohibited." (See also 6 RCNY § 2-233 [2000].)

The 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.' " (Mem of Senator Martin J. Knorr, Process Serving Abuse " Sewer Service," 1986 N.Y. Legis Ann, at 180; Mem of N.Y.S. Dept of Law regarding Senate Bill S 8408-C, July 15, 1986, Bill Jacket, L 1986, ch 340; letter from Assembly Member ...


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