• Joint Administrative Order 453 168
• Joint Administrative Order 456 172
• Joint Administrative Order 490 173
• Joint Administrative Order 511 175
• Joint Administrative Order 514 178
• Joint Administrative Order 533 180
• Joint Administrative Order 534 181
• Joint Administrative Order 542 182
• Civil Court Directive 288 183
• Civil Court Directive 334 187
• Civil Court Directive 354 188
• Civil Court Directive 358 189
• Civil Court Directive 627 190
• Corporation Counsel Opinion 107,883 191
• Corporation Counsel Opinion 44-80 193
• The Seal of the City of New York 196
• Valuable Gift Rule 197
• 72 Hour Notice of Eviction 201
• NNotice of Eviction 202

Joint Administrative Order 453

The Appellate Division of the Supreme Court, First Judicial Department, and the Appellate Division of the Supreme Court, Second Judicial Department, pursuant to the authority vested in each of them, and for the purpose of providing controls and close supervision of City Marshals, do hereby jointly order as follows:

1. The Commissioner of Investigation of the City of New York or his designee, is empowered to supervise and monitor the official acts of New York City Marshals and to take complaints, make inquiries and conduct investigations into all aspects of marshals' activities.
2. The Commissioner of Investigation or his designee, in order to investigate and monitor the activities of city marshals, may hold hearings, compel the attendance of and examine under oath a marshal and his employees regarding the official acts of any marshal.
3.  
   1. Each city marshal shall keep detailed books and records and maintain bank accounts as prescribed by the Appellate Divisions or the Department of Investigation.
   2. A city marshal's official books, records and bank accounts are public records and as such are subject to unannounced inspections by the Department of Investigation or anyone designated for that purpose by the Commissioner of Investigation or the Appellate Divisions.
   3. Should the Commissioner of Investigation deem it proper, the Department of Investigation may take into its custody any or all of the official records of a city marshal for the purpose of inspecting them.
   4. Each city marshal shall surrender all official books and records including, but not limited to, cash books, docket books, check books, bank statements, and cancelled checks to the Department of Investigation upon termination of office. Should it become necessary, access to such official books and record for the purpose of examination shall be accorded to the city marshal surrendering the same. Upon termination of office, each city marshal shall further prepare a final report of his official acts, as prescribed by the Department of Investigation, which shall include a final statement of monies held in trust, expenses incurred, and fees earned.
   5. A city marshal is entitled to only those fees for those services which are prescribed by law and set forth in an official schedule of fees issued by the Commissioner of Investigation. A city marshal shall perform all other services required of him by law without any other fees or charges, except as otherwise expressly prescribed by law. No fee to which a city marshal is entitled may be waived without specific written authorization of the Commissioner of Investigation.
   6. Each city marshal shall henceforth, in accordance with the procedures prescribed by the Department of Investigation, provide for a fiduciary who shall, upon the death or incapacity of said marshal, assume complete responsibility for the marshal's bank accounts and official records, and shall distribute any monies held in trust or otherwise collected by the marshal to the proper judgment creditors or to any other individual(s) to whom such monies are due and owing. Such a fiduciary shall be compensated at the marshal's own expense.
4.  
   1. The Commissioner of Investigation is empowered to continue to issue directives regarding marshals' official day to day activities including, but not limited to, the official records to be kept by city marshals, the procedures for performing their duties, and the conduct of marshals and their employees. Copies of all directives shall be forwarded to the Appellate Divisions, and each directive shall remain in full force and effect unless and until nullified by joint order of both Appellate Divisions.
   2. Any handbook of regulations for city marshals which may be promulgated by the Department of Investigation shall become effective upon the approval of both Appellate Divisions. Any substantial policy changes therein shall require similar approval. However, copies of any other changes therein by directive or otherwise shall be forwarded to the Appellate Divisions and such changes shall remain in full force and effect unless and until nullified by joint order of both Appellate Divisions.
5. The Director of the Bureau of Marshals at the Department of Investigation or any other person or persons designated by the Commissioner of Investigation may, after an investigation, present evidence of incompetency, misconduct, or other wrongdoing as set forth in Section (6) herein to the Commissioner of Investigation. The Commissioner may accordingly designate a deputy commissioner, assistant commissioner, or other qualified person to hear charges as provided herein or, in the alternative, at the option of the Commissioner, refer these charges and this evidence to the Appellate Divisions for disciplinary action or removal proceedings.
6.  
   1. The Commissioner of Investigation may, after a hearing on charges preferred against a city marshal, impose penalties upon him including, but not limited to, suspension from the performance of his official duties for a period not to exceed six months for violation of the civil laws, the rules of the Appellate Divisions of the First and Second Departments, the rules of the Civil Court of the City of New York, the directives of the Department of Investigation, or for incompetency or misconduct.
   2. A city marshal against whom such disciplinary action is proposed shall have written notice thereof and of the reasons therefore, shall be furnished a copy of the charges preferred against him, and shall be allowed at least eight days for answering the same in writing. The marshal shall be entitled to a full and complete hearing with the assistance and presence of counsel.
   3. The hearing upon such charges shall be held by such deputy commissioner, assistant commissioner, or other person designated by the Commissioner of Investigation for that purpose.
   4. The deputy commissioner or assistant commissioner holding such hearing shall, upon the request of the city marshal against whom charges are preferred, permit him to be represented by counsel, and shall allow him to summon witnesses on his behalf. The burden of proving incompetency, misconduct or other wrongdoing shall be upon the Director of the Bureau of Marshals or other person designated by the Commissioner of Investigation for the purpose of preferring charges and shall be by a fair preponderance of evidence. The deputy or assistant commissioner holding such hearing shall receive evidence in the same manner as if this hearing were held pursuant to section 75 of the Civil Service Law, in that compliance with technical rules of evidence shall not be required.
   5. If the city marshal is found guilty, a transcript of the hearing, and a written statement of the determination and the reason therefore, shall be filed in the office of the Department of Investigation. A copy of the transcript shall, upon request of the city marshal affected, be furnished to him without charge.
   6. If desired, the city marshal may appeal any decision by the Commissioner of Investigation to the appellate divisions. The marshal shall file such appeal in writing within 20 days after service of written notice of the determination to be reviewed, such written notice to be delivered personally or by registered mail to the last known office address of such city marshal. When notice is given by registered mail, such city marshal shall be allowed an additional three days in which to file an appeal.
7. A marshal, after being furnished with a copy of the charges preferred against him, may knowingly waive a hearing as provided in subdivision (6) of this section, and agree to a penalty prescribed by the Commissioner of Investigation.
8. Perjury by a city marshal or his failure to testify concerning his official duties at an investigative or administrative hearing held at the Department of Investigation after being granted immunity from the use of the testimony in a criminal prosecution shall be ground for removal.
9. Failure to comply with penalties imposed by the Commissioner of Investigation shall be ground for removal.

This Order is effective immediately and shall remain in full force and effect unless and until modified or nullified by Joint Order of both Appellate Divisions.

Dated: New York, N.Y. and
Brooklyn, New York
November 12, 1975

FOR THE FIRST DEPARTMENT FOR THE SECOND DEPARTMENT

/S/ /S/

HAROLD A. STEVENS FRANK A. GULOTTA

Presiding Justice Presiding Justice

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Joint Administrative Order 456

The Appellate Division of the Supreme Court, First Judicial Department, and the Appellate Division of the Supreme Court, Second Judicial Department, pursuant to the authority vested in each of them, and for the purpose of supplementing and amending their joint administrative order (J.ADM 453 dated November 12, 1975), with respect to providing controls and close supervision of City Marshals, do hereby, effective immediately, jointly order as follows:

1. Any and all charges preferred by the Commissioner of Investigation shall be in writing and filed with both Appellate Divisions pursuant to Section 1610 of the Civil Court Act.
2. The Commissioner of Investigation or his designee, as provided in paragraph (5) of Joint Administrative Order #453, may thereupon conduct hearings on the charges filed with both Appellate Divisions, except with respect to such charges warranting immediate suspension of a city marshal pending a hearing as hereinafter provided.
3. Should the Commissioner of Investigation, following a hearing, conclude that a penalty in excess of a suspension of six months is warranted, he may impose such six months' suspension, and shall thereupon refer the entire matter together with the minutes of all proceedings had therein and his report and recommendations to both Appellate Divisions for their joint consideration and disposition.
4. Should the Commissioner of Investigation deem the charges to be of such a nature as to warrant the immediate suspension of a city marshal pending a hearing on removal proceedings, he shall not conduct such hearings or proceedings but shall file such charges in writing with both Appellate Divisions pursuant to Section 1610 of the Civil Court Act, together with his request for the immediate suspension of such city marshal and for such removal proceedings as the Appellate Divisions may be advised to pursue under the circumstances.
5. In all other respects the provisions of Joint Administrative Order #453 dated November 12, 1975, shall remain in full force and effect.

Dated: New York, N.Y. and
Brooklyn, New York
November 12, 1975

FOR THE FIRST DEPARTMENT FOR THE SECOND DEPARTMENT

/S/ /S/

HAROLD A. STEVENS FRANK A. GULOTTA

Presiding Justice Presiding Justice

Joint Administrative Order 490

The Appellate Division of the Supreme Court, First Judicial Department, and the Appellate Division of the Supreme Court, Second Judicial Department, pursuant to the authority vested in each of them by statute (New York City Civil Court Act, Article 16) and for the purpose of supplementing their joint administrative orders (J. ADM. 453 dated November 12, 1975 and J. ADM. 456 dated February 27, 1976) do hereby, effective January 1, 1980, jointly order as follows:

1. The Commissioner of Investigation of the City of New York or his designee, is directed and empowered to establish a training program for persons seeking to assume the office of New York City Marshal.
2. The Marshal's training program shall consist of lectures given by members of the Marshals Bureau of the Department of Investigation and officials from the Civil Court of the City of New York. The lectures shall review in detail the following areas of responsibilities:
   1. Levies and Sales
   2. Summary Proceedings
   3. Income Executions
   4. Orders of Arrest, Attachment and Seizure
   5. Maintenance of Books and Records
   6. Required Bank Accounts
   7. Financial Statements
3. All prospective marshals must attend all lectures. If a prospective marshal cannot reasonably attend any lecture, he must review a tape recording of any lecture which is missed.
4. All prospective marshals shall be issued a Handbook of Regulations for which they will be held accountable.
5. The Department of Investigation shall administer an examination at the conclusion of the lecture series which shall test materials contained in the lectures as well as the Handbook of Regulations.
6. The Commissioner of Investigation shall issue a certificate of satisfactory completion to all those prospective marshals who have attended all the lectures or tape recordings and who have passed the examination.
7. New York City Marshals shall execute and enforce small claims judgments within the City of New York whenever such judgments are delivered to such Marshals in accordance with law.
8. The Department of Investigation shall issue directives providing for the assignment of specified marshals on a rotating basis during fixed time periods to the task of executing and enforcing such small claims judgments. The marshals so specified shall submit quarterly reports to the Department of Investigation reporting each such judgment collected and each unsuccessful attempt at collection and the reason or reasons for any lack of success at collection.

Dated: New York, N.Y. and
Brooklyn, New York
December 31, 1979.

FOR THE FIRST DEPARTMENT FOR THE SECOND DEPARTMENT

/S/ /S/

FRANCIS T. MURPHY, JR. MILTON MOLLEN

Presiding Justice Presiding Justice

Joint Administrative Order 511

The Appellate Division of the Supreme Court, First Judicial Department and the Appellate Division of the Supreme Court, Second Judicial Department, pursuant to the authority vested in each of them, and for the purpose of supplementing and amending their Joint Administrative Order (J.ADM. 453, dated November 12, 1975), with respect to providing controls and close supervision of City marshals, do hereby, effective immediately, jointly order as follows:

• ORDER THAT each City marshal shall forthwith forward, in writing, to the Commissioner of the Department of Investigation or his designee (the Department) for its approval, the name of an individual he/she chooses to be designated as the fiduciary for the marshal's bank accounts and official records. This request shall be accompanied by a sworn affidavit from the prospective fiduciary, indicating that he/she accepts such responsibility and swears to abide by this Order and all Directives promulgated by the Department. The affidavit must be accompanied by a completed Department of Investigation background questionnaire. Such fiduciary proposed by the marshal must be an individual with sufficient knowledge of marshal's books, records and functions to fulfill the fiduciary role.
• ORDERED THAT each City marshal shall forthwith forward to the Department, for its approval, a proposal for compensation for his/her fiduciary. Such proposal must indicate the rate of payment for the fiduciary and the fact that the fiduciary will be compensated from funds in the marshal's operating account. After the fiduciary and the method of compensation have been approved by the Department, in writing, an agreement establishing the fiduciary relationship, the rate of compensation and an agreement to abide by the guidelines for the fiduciary must be executed by both the marshal and that individual and forwarded to the Department. The Department will then approve the entire agreement. This agreement, the subsequent Department approval and this Order must be given to each bank in which a marshal maintains an account and the fiduciary must be established for each account.
• ORDERED THAT, under all circumstances of death and incapacity of a City marshal, the fiduciary cannot assume his/her responsibility without written approval from the Department at the time the fiduciary is to actively function.
• ORDERED THAT, in the event of the death of a City marshal, the fiduciary must provide the Department with sufficient proof of the death of the marshal. The Department will then, in writing, authorize the fiduciary to assume control. This written authorization must be provided to each bank in which a marshal maintains an account.
• ORDERED THAT in the event of the incapacity of a City marshal, the fiduciary or another individual must, in writing, inform the Department of the specific facts relating to the incapacity and request that the fiduciary assume control. A determination will be made by the Department that the marshal is incapacitated to the point of being unable to function as a City marshal and will then, in writing, authorize the fiduciary to assume control. This authorization must be presented to each bank in which a marshal maintains an account. Should the Department determine that the marshal is so incapacitated that he will be unable to return to his duties, the Department will approve the fiduciary and begin an administrative action against that marshal, seeking his removal.
• ORDERED THAT the fiduciary shall assume complete responsibility for the marshal's bank accounts and official records and shall distribute any monies held in trust or otherwise collected by the marshal to the proper judgment creditors or to any other individuals to whom such monies are due and owing.
• ORDERED THAT the fiduciary shall transfer all appropriate fees, poundage and reimbursable expenses from the trust account to the operating account for the purpose of paying all operating expenses. Only after all outstanding operating expenses have been paid can the fiduciary draw his/her compensation. In the event of the death of the marshal, the remainder of the monies in the operating account must remain in the account pending the appointment of the estate representative. In the event of incapacity, the remainder or part thereof of the monies in the account are to be paid to the marshal in an amount sufficient so as to maintain the on-going marshal's business.
• ORDERED THAT in the event of the death of a City marshal, the fiduciary's responsibilities end upon the appointment of an executor or an administrator to the deceased marshal's estate. The fiduciary must immediately inform the Department of the termination of his/her responsibilities. The Department will acknowledge, in writing, this fact. The fiduciary must apprise each bank in which a marshal has an account that his/her responsibilities have ended.
• ORDERED THAT, in the event that a City marshal who had been declared incapacitated seeks to return to his/her position, he/she must advise the Department, in writing, that he/she is capable of returning to his position and must receive in writing from the Department authorization to return to his duties. The return of the City marshal returns the fiduciary relationship to its initial state of dormancy.
• ORDERED THAT the City marshal can, at any time, replace the established fiduciary or alter the rate of compensation. Such changes, in order to be valid, must be made in accordance with all procedures set forth in this Order.
• ORDERED THAT if for any reason the fiduciary refuses to take complete responsibility for the marshal's books, bank accounts and official records, or if a dispute as to the fiduciary or the rate of compensation arises, or if the Department finds that the fiduciary is failing to act in the best interest of all parties, the Department is empowered to make an application to the Appellate Division to remove such fiduciary and substitute an individual chosen by the Department, who will be compensated at the same rate as the fiduciary designated by the marshal, or at a rate to be set by The Appellate Division.

Dated: New York, N.Y., and
Brooklyn, New York
December 16, 1982.

FOR THE FIRST DEPARTMENT FOR THE SECOND DEPARTMENT

/S/ /S/

FRANCIS T. MURPHY, JR. MILTON MOLLEN

Presiding Justice Presiding Justice

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Joint Administrative Order 514

The Appellate Division of the Supreme Court, First Judicial Department and the Appellate Division of the Supreme Court, Second Judicial Department, pursuant to the authority vested in each of them and for the purpose of clarifying their Joint Administrative Order (J. ADM. #453, dated November 12, 1975), with respect to providing controls and close supervision of City Marshals, do hereby, effective immediately, jointly order as follows:

1. The Commissioner of Investigation of the City of New York, for the purpose of supervising and monitoring the official acts of New York City Marshals may, after an investigation of a moving or storage company which removes or stores property as a result of a dispossession of a tenant by a City Marshal, bar a City Marshal from any direct or indirect association with that company and/or its principals.
2. The barring of City Marshals from any association with a moving or storage company and its principals shall occur only after a finding by the Commissioner of Investigation that the company and/or its principals has engaged or is engaging in any acts in violation of criminal or civil law, the rules of the Appellate Division of the First and Second Departments, the rules of the Civil Court of the City of New York, the Directives of the Department of Investigation, or acts constituting incompetency or misconduct.
3.  
   1. Prior to a determination by the Commissioner of Investigation to bar a City Marshal from direct or indirect association with a moving or storage company and its principals that company must be given the opportunity, in writing, to appear before the Commissioner of Investigation or his designee to contest the allegations against it. The written request from the Department to appear must include the following: specifications of the allegations against the company; a statement that the company shall be entitled to the assistance and presence of counsel; a statement that the company shall be entitled to present witnesses on its behalf; a statement that a record of the appearance shall be made; and a statement that if there is a finding against the moving or storage company Marshals may be barred from any direct or indirect association with that company and/or its principals.
   2. Prior to any determination, the Commissioner of Investigation shall review the entire investigative file, including the record of the moving or storage company's appearance.
4. Should the Commissioner of Investigation determine that a City Marshal be barred from any association with a moving or storage company and/or its principals, the Commissioner of Investigation shall so notify the Marshal and the moving or storage company and the Appellate Division of the Supreme Court, First and Second Judicial Departments, in writing.
5. The City Marshal shall, immediately upon receipt of the Commissioner's determination, cease any association with that moving or storage company and its principals. The Marshal's failure to do so shall be grounds for removal.

DATED: New York, New York
and Brooklyn, New York
April 21, 1983

FOR THE FIRST DEPARTMENT FOR THE SECOND DEPARTMENT

/S/ /S/

FRANCIS T. MURPHY, JR. MILTON MOLLEN

Presiding Justice Presiding Justice

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Joint Administrative Order 533

The Appellate Division of the Supreme Court, First Judicial Department and the Appellate Division of the Supreme Court, Second Judicial Department, pursuant to the authority vested in each of them, do hereby, effective immediately, jointly order that the first decretal paragraph of Joint Administrative Order 511 is amended as follows:

ORDER THAT each City marshal shall forthwith forward, in writing, to the Commissioner of the Department of Investigation or his designee (the Department) for its approval, the name of an individual he/she chooses to be designated as the fiduciary for the marshal's bank accounts and official records. This request shall be accompanied by a sworn affidavit from the prospective fiduciary, indicating that he/she accepts such responsibility and swears to abide by this Order and all directives promulgated by the Department. The affidavit must be accompanied by a completed Department of Investigation background questionnaire. Such fiduciary proposed by the marshal must be an individual with sufficient knowledge of marshal's books, records and functions to fulfill the fiduciary role. Such fiduciary shall be a domiciliary of the City of New York.

Additions to text are indicated by underline.

Dated: New York, N.Y., and
Brooklyn, N.Y.
March 25, 1988

FOR THE FIRST DEPARTMENT FOR THE SECOND DEPARTMENT

/S/ /S/

FRANCIS T. MURPHY MILTON MOLLEN

Presiding Justice Presiding Justice

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Joint Administrative Order 534

The Appellate Division of the Supreme Court, First Judicial Department, and the Appellate Division of the Supreme Court, Second Judicial Department, pursuant to the authority vested in each of them, for the purpose of supplementing and amending their joint administrative orders (J. ADM 453 dated November 12, 1975 and J. ADM 456 dated February 27, 1976) with respect to providing controls and close supervision of City Marshals do hereby, effective immediately, jointly order as follows:

1. Where an eviction or legal possession is to be carried out by a Marshal in a county other than the county where the Marshal maintains an office, and an order to show cause is obtained staying the eviction or legal possession, the court may provide that notification by telephone to the Marshal's office by the court or its designee informing the Marshal or a member of his staff that the order was obtained shall be sufficient to stay execution of the warrant, provided that the tenant shall send a copy of the order to show cause to the Marshal's office by certified mail within one day after the date of the order. Where the order is silent as to whether or not notification by telephone is sufficient to stay execution of the warrant, such notification shall be sufficient provided the order is subsequently served on the Marshal by certified mail as provided herein. The court may designate only a Civil Court Law Assistant to telephone the Marshal's office on the court's behalf.
2. Nothing herein shall be construed to relieve the tenant of the obligation to serve the order to show cause upon the petitioner-landlord or petitioner's-landlord's attorney.

Dated: New York, New York and
Brooklyn, New York
July 12, 1988

FOR THE FIRST DEPARTMENT FOR THE SECOND DEPARTMENT

/S/ /S/

FRANCIS T. MURPHY MILTON MOLLEN

Presiding Justice Presiding Justice

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Joint Administrative Order 542

The Appellate Division of the Supreme Court, First Judicial Department, and the Appellate Division of the Supreme Court, Second Judicial Department, pursuant to the authority vested in them by Article Sixteen of the New York City Civil Court Act, for the purpose of providing continuing controls and close supervision of city marshals, and in order to supplement Joint Administrative Orders 453 and 456, do hereby jointly order as follows:

1. Pursuant to Joint Administrative Order 453 §4 (b), the New York City Marshals Handbook of Regulations submitted to these Courts on July 11, 1997 by the Commissioner of the New York City Department of Investigation is hereby approved.
2. The above titled handbook of regulations shall become effective sixty days after the date of this order.

DATED: New York, New York
and Brooklyn, New York
August 25, 1997

FOR THE FIRST DEPARTMENT FOR THE SECOND DEPARTMENT

/S/ /S/

FRANCIS T. MURPHY, JR. GUY J. MANGANO

Presiding Justice Presiding Justice

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Civil Court Directive 288

Replevin - Minimal Guidelines for Utilities

(Supplement to Directives 176 and 219 of March 17 and December 5, 1972 Respectively)

Where a plaintiff-utility seeks to include a provision authorizing the Sheriff or Marshal to break open and enter premises to search for a gas an electric meter the order, except in exigent or most unusual circumstances, shall be signed only where the defendant has been given prior notice of the application and an opportunity to be heard thereon, as follows:

The application shall:

1. Include a copy of a notice bearing boxed legends or caveats at the top thereof in not less than 12 point bold upper case type, as follows:

   -------------------------------------------------------------------------

   NOTICE! YOUR GAS OR ELECTRICITY MAY BE CUT OFF! IF YOU WISH A HEARING YOU MUST GO TO THE CLERK'S OFFICE OF THE CIVIL COURT AT (fill in address), PROMPTLY!

   -------------------------------------------------------------------------

   AVISO! SU GAS O ELECTRICIDAD PUEDEN SER CORTADOS! SI USTED DESEA UNA AUDIENCIA USTED DEBE IR A LAS OFICINAS DEL SECRETARIO DE LA CORTE CIVIL EN (ponga la direccion), IMMEDIATAMENTE!

   -------------------------------------------------------------------------

   1. The copy of the notice shall have adequately apprised the defendant of the:
      1. index number of the proceeding, the nature of the application and the basic elements of the impending complaint. This shall include:
         1. the amount of money alleges to be due, the proof of which, shall be made available at the hearing;
         2. the date of the last billing rendered to the defendant;
         3. either the actual meter readings, or the estimated meter readings, the basis of which, shall be made available at the hearing; and
         4. the defendant's account number.
      2. consequences of the Marshal's or Sheriff's execution of the order, if signed, i.e., that his dwelling may be entered and searched, or the public areas of the multiple dwelling in which he resides may be entered and searched; and that either event his gas or his electric services will be terminated and the meter seized;
      3. right to be heard on this application;
      4. fact that if he wishes a hearing, he or his designated representative must appear in the Civil Court of the City of New York, County of , at address, at Special Term, Part II weekdays between 9 A.M. and 5 P.M. within ten (10) days from the date of service of the notice as set forth in Section 2 hereof, in order to obtain a return date for the hearing;
      5. fact that at the hearing he will be required to be present, shall have the right to be represented by an attorney and shall have an opportunity to refute the bill;
      6. fact that if he does not appear in court by the last day permitted, the order of seizure will be presented for the Judge's signature.
2. State that service of the notice and accompanying papers, if any, had been made by:
   1. delivery within the City of New York pursuant to Section 308(1), 308(2), or 308(5) of the CPLR; or
   2. affixing a copy thereof upon the door of the residence of the defendant at the premises in which the property to be seized is located, and in addition, within one day thereafter, by mailing a copy to the defendant; or
   3. registered or certified mail to the defendant, and in addition by ordinary mail addressed in the following manner:

   (named defendant) or Occupant (address) (apartment number), if available; and the affidavit of service of the notice must have been filed within seven (7) days of such service.

3. Include an affidavit which contains all the elements upon which this application is based together with a statement that there has been compliance with the statutory provisions relating to discontinuance of service, and
   1. a refusal by the defendant or by a person of suitable age in the premises (setting forth the date of the refusal and by whom made) to permit the utility employees to enter into or upon the premises to disconnect the meter, or
   2. that no one was home after at least two attempts to gain such admittance (setting forth the dates and times of day thereof).

The Marshal or Sheriff to whom the order of seizure is delivered shall give at least a full seventy-two hours notice, in writing, by mail, to the defendant advising him of the date and whether in the morning or afternoon, of the intended breaking and entering upon his premises to search for and seize the meter, and shall execute the order, a copy of which is attached thereto, only between the hours of sunrise and sunset.

The proposed order shall direct service of the copies of the affidavit, order, summons and verified complaint upon the defendant in accordance with the appropriate sections of the CPLR, and the filing of the affidavits of service thereof with the Clerk of this Court. It shall also contain a particular description of the gas or electric meter to be seized (identification number) and shall specify the place on the defendant's premises where the meter is located.

An undertaking shall be submitted in a sum of not less that $500.00 supported by appropriate affidavit.

Edward Thompson, J.S.C.
Administrative Judge
March 19, 1974

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Civil Court Directive 334

Notice to Judges and Clerks - All County Divisions

Attachment - Minimum Guidelines

Article 62 of the CPLR relating to the provisional remedy of attachment has been declared unconstitutional by a three judge Federal Court "to the extent that a New York defendant has no meaningful opportunity to vacate an order of attachment granted ex parte and without prior notice" (Sugar et al. v. Curtis Circulation Company et al., U.S.D.C., S.D.N.Y., 74 Civ. 78, October 10, 1974).

1. Accordingly and effective immediately, all orders of attachment shall contain the following: "It is further ordered that the plaintiff within 3 days after levy is made, shall make a motion on notice to defendant, garnishee and sheriff for leave to prove the grounds upon which the order of attachment was issued, the burden of proof as to such issue being on the plaintiff. If no such motion is made the order of attachment shall be deemed vacated. No disposition of the levied property shall be made by the sheriff until final determination of the motion."
2. The foregoing shall not be deemed in any way to prevent the sheriff from levying upon the defendant's property, subject, however, to such levy being vacated after the hearing on the motion as aforesaid.
3. The foregoing shall apply equally to marshal as well as sheriffs.

Edward Thompson, J.S.C.
Administrative Judge - Civil Court
Deputy City Administrative Judge,
Civil Division
October 28, 1974

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Civil Court Directive 354

Civil Court of the City of New York

Notice to Judges and Clerks - All County Divisions

Income Executions to be Issued for Judgment Creditors Appearing in Person

Under Directive No. 34, before an income execution is issued by the clerk where the judgment creditor appears in person, the judgment creditor was required to provide an affidavit alleging where and by whom the judgment debtor is employed and the amount of his earnings.

Effective immediately, such an affidavit is no longer required. The clerk shall issue such execution when such completed execution is submitted to him for signature by the Sheriff or Marshal.

Edward Thompson, J.S.C.
Administrative Judge - Civil Court
Supreme and Civil Courts
March 6, 1975

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Civil Court Directive 358

Directive to Sheriff and Marshals of the City of New York

Return of Executions - Record Keeping

Effective immediately, you are hereby directed to return all unsatisfied, partially satisfied and fully satisfied executions to the County Division of the Small Claims Part from which they were issued. Explanations setting forth the reasons why they are not fully satisfied shall be set forth thereon.

Said executions shall thereon be recorded by the Clerk on the docket cards of the respective cases.

In all cases where a judgment has not been fully satisfied, he Clerk shall prepare and file alphabetically under the name of the judgment debtor, a card setting forth the judgment creditor's name, the index number of the case and the amount still unpaid on the judgment.

Each month, the file cards shall be sent to Central Files at 111 Centre Street, New York, where they will be maintained in alphabetical order for inspection by the Department of Consumer Affairs of the City of New York, any interested governmental agency, civic organization, or the general public.

Also for public inspection, the Clerk of each Small Claims Part shall keep permanently a chronological list of said information as the executions are returned, and interchange such lists with the Clerks of all county divisions of the Small Claims Court monthly.

Thereby, an alphabetical and chronological list of judgment debtors who fail to pay is kept for public information.

Edward Thompson, J.S.C.
Deputy City Administrative Judge
Civil Division
Supreme & Civil Courts
April 15, 1975

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Civil Court Directive 627

Civil Court of the City of New York

Notice to All Judges, Housing Judges,

Law Assistants and Clerks Housing Part

Effective June 29, 1981, Chapter 360 of the Laws of 1981 amends Section 309(1) of the Military Law.

As such non military affidavits will be required in all landlord and tenant proceedings affecting residential housing. Final judgment of possession upon default should not be granted in the absence of such an affidavit.

This Directive supersedes Directive No. 320 issued August 16, 1974.

Francis X. Smith, J.S.C.
Deputy City Administrative Judge
Civil Branch
July 15, 1981

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Corporation Counsel Opinion 107,883

Hon. Nicholas Scoppetta

Commissioner, Department of Investigation

Dear Mr. Scoppetta:

This is in reply to your letter, dated December 10, 1973, requesting an opinion as to whether in view of section 1603 of the New York City Civil Court Act, a city marshall may retain the services of a licensed process server to serve the "seventy-two hour notice" required by section 749, subdivision 2 of the Real Property Actions and Proceedings Law to be served upon a person to be evicted.

Section 1603 of the New York City Civil Court Act prohibits any person from pretending to be a city marshal and makes it unlawful for a city marshal "to permit any person, other than a city marshal, to perform any act in his name, or to sign or to use his name in the performance of any act which must be performed personally by a city marshal." (emphasis added)

Real Property Actions and Proceedings Law, §749 provides for the issuance of a warrant by the Civil Court directed to an officer, commanding him to remove all persons an restore possession of the property to the successful petitioner. Subdivision 2 of that section provides that "[t]he officer to whom the warrant is directed and delivered shall give at least seventy-two hours notice, in writing and in the manner prescribed in this article for the service of a notice of petition, to the person or persons to be evicted or dispossessed ***". The subdivision requires the marshal to "give" seventy-two hours notice of eviction. It does not require the marshal personally to serve the notice.

The manner prescribed in RPAPL, Art. 7 for the service of a notice of petition is contained in section 735 thereof. That section is silent, however, as to who may make service and the matter is therefore governed by the CPLR (see CPLR, '1010 which, in pertinent part, provides as follows:

"Rule 2103. Service of papers.

1. Who can serve. Except where other wise prescribed by law or order of court, papers may be served by any person not a party of the age eighteen years or over."

Research fails to disclose any provision of law which requires a city marshal personally to serve a seventy-two hour notice of eviction in a summary proceeding to recover possession of real property.

Accordingly, you are advised that New York City Civil Court Act, §1603 does not prohibit a city marshal from retaining the services of a licensed process server to serve the "seventy-two hour notice" required by RPAPL, '749, subd. 2, since that act is not one "which must be performed personally by a city marshal."

Sincerely

s/Adrian P. Burke
Corporation Counsel
April 3, 1974

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Corporation Counsel Opinion 44-80

Hon. Stanley N. Lupkin

Commissioner, Department of Investigation

Dear Mr. Lupkin:

This is in response to your request for an Opinion whether a City marshal may perform any other type of work aside from his duties as a marshal.

Section 1601-a of the New York City Civil Court Act, which deals with the qualifications for service as, and prohibitions placed upon, marshals, was added by Chapter 533 of the Laws of 1979, and became effective on January 1, 1980. Subdivision 2 of this section provides, in pertinent part, as follows:

a. *** [N)o marshal shall actively engage or participate in any other occupation or employment, nor shall any marshal engage or participate in any trade or business which creates or might tend to create an actual or potential conflict of interest. No marshal or member of his or her immediate family shall maintain any financial interest, direct or indirect, in a process serving agency, a towing company or a furniture moving and storage company.

Subdivision 2(a) places prohibitions on three distinct categories of outside activities of City marshals. The first prohibits marshals from "actively" engaging or participating "in any other occupation or employment". The second prohibits marshals from engaging or participating in any trade or business which creates or might tend to create an actual or potential conflict of interest. The provision further prohibits marshals and their immediate families from maintaining any direct or indirect financial interest in certain specifically identified enterprises: process serving, towing, and furniture moving and storage.

In providing that no marshal shall "actively engage or participate in any other occupation or employment", it was the intent of the Legislature to require that marshals devote their full time to the performance of their duties as marshals. See Memorandum of the City of New York, 1979 Leg. Ann. 323. The statute is plain on its face and provides that while serving his term of office as a marshal an individual shall not have any other employment or occupation. Interpreting a substantially similar provision of law, Charter, §1100, subd. a, requiring heads of city departments and certain elected officials to devote their whole time to their duties,* this office has repeatedly held that permissible outside activities for a covered official are strictly limited to those "which do not involve the active management of a business or profession and which do not require him to devote a substantial amount of time thereto." Opinion No. 22-80, dated April 30, 1980; See Matter of Deuel, 127 App. Div. 640 (1st Dept., 1908); Matter of Levy, 198 App. Div. 326 (1st Dept., 1921); McQuade v. Stoneham, 263 N.Y. 323 (1934). Thus, section 1100, subd. a, has been held to prohibit a covered official from engaging in the practice of law (Opinion No. 108,353, dated August 26, 1976), while limited outside activities which do not interfere with official duties, for example teaching a two-hour per week course at a university, have been held to be permissible. See Opinion No. 22-80, supra.

Section 1601-a(2) (a) further provides that no marshal shall "engage or participate in any trade or business which creates or might tend to create an actual or potential conflict of interest." The fact that the amount of time devoted by a marshal to a trade or business is insubstantial is of no significance where a marshal's engagement or participation in a trade or business creates or might tend to create an actual or potential conflict of interest. In contrast to the prohibition discussed above, the Legislature has not, with respect to this prohibition, used the adverb "actively" to modify the term "engage or participate". Therefore, it is my opinion that any financial interest or participation in a trade or business, including, but not limited to, stock ownership or partnership, or serving as a director or trustee, regardless of the amount of time devoted thereto by a marshal is strictly prohibited if the activity creates or might tend to create an actual or potential conflict of interest.

The final prohibition contained in the provision is specific and requires no interpretation:

"No marshal or member of his or her immediate family shall maintain any financial interest, direct or indirect, in a process serving agency, a towing company or a furniture moving and storage company."

The term "immediate family" is expressly defined to mean the "spouse, parent, child, stepchild or sibling" of a marshal.

This office is, of course, prepared to advise you concerning the application of the prohibitions contained in §1601-a(2) (a) to particular sets of factual circumstances.

* Charter, §1100, is entitled "Head of department; whole time". Subd. a provides:

"Every head of an administration or department or elected officer except council members who receives a salary from the City shall give his whole time to his duties and shall not engage in any other occupation, profession or employment."

Sincerely,

s/Allen G. Schwartz
Corporation Counsel
September 8, 1980

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The Seal of the City of New York

The Seal of the City of New York is described follows: Arms: Upon a shield, saltire wise, the sails of a windmill. Between the sails in chief a beaver, in base a beaver, and on each flank a flour barrel. Supporters: Dexter, a sailor, his right arm bent, and holding in his right hand a plummet; his left arm bent, his left hand resting on top of the shield; above his right shoulder, a cross-staff. Sinister, an Indian of Manhattan, his right arm bent, his right hand resting on top of the shield, his left hand holding the upper end of a bow, the lower end of which rests on the ground. Shield and supporters rest upon a horizontal laurel branch. Date: Beneath the horizontal laurel branch the date 1625, being the year of the establishment of New Amsterdam. Crest: An American eagle with wings displayed, upon a hemisphere. Legend: Upon a ribbon encircling the lower half of the design the words "Sigilium Civitatis Novi Eboraci." [Seal of the City of New York]. The whole is encircled by a laurel wreath.