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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: June 21, 2019

GBL 13 Claim for Malicious Service of Process on the Sabbath Dismissed for Lack of Allegations of Malice

On May 28, 2019 Justice Knipel of the Kings County Commercial Division issued a decision in Hargrove v. Hargrove-Boynton, 2019 NY Slip Op. 31632(U), dismissing a GBL 13 claim for malicious service on the sabbath for lack of allegations of malice, explaining:

Contrary to defendant’s contention, she is not entitled to a hearing on whether service of process violated General Business Law (GBL) ยง 13. That statute provides, in relevant part, that:

Whoever maliciously procures any process in a civil action to be served on Saturday, upon any person who keeps Saturday as holy lime, and does not labor on that day, is guilty of a misdemeanor. Service of process in violation of GBL 13 is void, and personal jurisdiction is not obtained over the party so served. To establish a violation of GBL 13, malicious intent must be shown.

Here, defendant has not met her burden under GBL 13 by failing to submit any evidence to demonstrate. malicious intent by plaintiff or his counsel in serving her on a Saturday. Unlike Lilker, defendant has submitted no evidence that plaintiff or his counsel was aware that she observed a Saturday as holy time and did not labor on that day. Rather, defendant merely avers in her affidavit that:

Brenda Hargrove, my mother, is also a Hebrew Israelite and knows our tradition well. My attorney tells me that Brenda purportedly has a power of attorney from Mr. Hargrove and engineered the commencement of this action. Given that Ms. Hargrove knows of our religious tradition, it was inappropriate to serve us process … on a Sabbath.

This statement, without any evidence to demonstrate malicious intent by plaintiff or his counsel, is insufficient to establish a prima facie violation of GBL 13, necessitating a hearing.

(Internal quotations and citations omitted).

Who knew?

There also is GBL 11, which, in general, prohibits service on Sundays:

All service or execution of legal process, of any kind whatever, on the first day of the week is prohibited, except in criminal proceedings or where service or execution is specially authorized by statute. Service or execution of any process upon said day except as herein permitted is absolutely void for any and every purpose whatsoever.

The rules regarding how you start a lawsuit and bring the defendants into it can sometimes be esoteric. As shown here, there are rules regarding when a plaintiff can serve a defendant. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have a question regarding the proper way to serve a defendant, bringing them into a lawsuit.

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