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Only service of the petition and related papers an individual authorized by the agency head to accept service constitutes proper service

Only service of the petition and related papers an individual authorized by the agency head to accept service constitutes proper service
Matter of Lowney v New York State Division of Human Rights, 2009 NY Slip Op 30270(U), February 4, 2009, Supreme Court, New York County, Docket Number: 108754/07, Judge: Walter B. Tolub [Not selected for inclusion in the Official Reports]

Cynthia Lowney sued the New York State Division Of Human Rights [DHR] and the New York State Department Of Labor [DOL], Unemployment Insurance Appeal Board.

Lowney, an attorney, was a former Department of Labor ("DOL") employee who was terminated from her position as an Administrative Law Judge in April 1992.

Ultimately the Division issued a final order declaring that Lowney won her retaliation claim and ordered the Labor Department to pay her approximately 20 months of back salary and $50,000 in compensatory damages. Subsequently Lowney sought the inclusion of a finding of gender discrimination, an additional award of back pay, an increase in compensatory damages and an award of the value of certain fringe benefits.

However, these efforts were unavailing because the DOL, a necessary party, had not been properly served with respect to these additional allegations and demands.

According to the decision, the Commissioner of Labor had designated the attorneys in the Counsel's Office of DOL in Albany to accept service on behalf of the DOL or any DOL official being sued in a representative capacity.

However, the notice of petition and petition were served on a DOL secretary, Roxanna Diaz, at a DOL office in New York City. Of critical significance, Ms. Diaz was not authorized to accept service on behalf of the DOL, nor was she authorized to accept service on behalf of the Commissioner of the Department of Labor.

In the words of Justice Tolub, ?The only person served was Ms. Diaz and service of process on an agency employee who is not designated to receive service of process does not constitute process service upon the agency.?

Accordingly, Justice Tolub denied Lowney?s motion to renew and/or reargue her petition seeking additional relief.

Full post as published by New York Public Personnel Law on February 26, 2010 (boomark / email).