Opinion
050801/10.
Decided January 31, 2011.
Robert Prignoli, Esq., Staten Island, New York.
Gregory Perry, Respondent Pro-Se.
A Traverse Hearing was held before the undersigned on January 26, 2011. The issue before the court was whether the predicate 30 (thirty) notice of termination was properly served on the respondents herein. Based upon the facts presented and testimony, the court sustains Traverse and dismiss the petition.
It is well settled that mailings of notices in a landlord tenant holdover proceeding must be addressed to the respondent at the property sought to be recovered. However, if the premises do not comprise the respondent's current place of residence, or if other addresses are known to the petitioner, then additional mailings should also be made to those alternate locations.
( See, e.g., Schwartz v. Certified Management Corp., 117 AD2d 521, 498 N.Y.S.2d 135 (1st Dep't 1986) ("[Landlord] was on notice that [tenant] was not actually residing in the premises at the time, having sublet the apartment to another one year earlier. Inasmuch as [landlord] had been put on notice at that time as to the office address of [tenant], it was incumbent upon [landlord], after affixing notice of the eviction proceeding to the door of the apartment, to mail a copy to [tenant]'s alternate address within one day. . . . This was not done, rendering the eviction proceeding jurisdictionally defective."); Esplanade Gardens v. Patterson, N.Y.L.J., 10/1/86, p. 12, col. 1 (App. Term, 1st Dep't) ("[P]etitioner clearly had written information that tenant was not residing in the subject premises, but had been residing for some time an [another] address. . .yet neglected to mail a copy of the notice of petition and petition to tenant's alternate address. This failure to comply with the service statute. . .rendered the proceeding jurisdictionally defective. . . ."); Parras v. Ricciardi, 185 Misc 2d 209, 710 N.Y.S.2d 792 (City Civ. Ct. 2000); 417 East Realty Associates v. Ryan, 110 Misc 2d 607, 442 N.Y.S.2d 880 (City Civ. Ct. 1981) (Landlord's failure to mail copy of papers to tenant's temporary medical treatment facility in Minnesota required proceeding's dismissal).
Here, the testimony of Process Server Richard Hussain was that the units at 104-106 Caroline Street, Staten Island, New York was unhabitable. The 4 (four) units lacked electricity and heat and appeared to be "abandoned." Process Server Hussain testified under oath that he did not attempt any service at any other locations for the respondents herein.
The court notes that there was a companion holdover proceeding filed at the same time when this very holdover proceeding was filed involving the same exact parties herein under index number 050805/10. The subject property in that proceeding was 64 Rice Avenue, Staten Island, New York. Being that petitioner was the same petitioner in the other proceeding, and he failed to do an alternate mailing on respondent at 64 Rice Avenue, Staten Island, New York as a matter of law service of the predicate (30) thirty notice of termination in this within holdover proceeding at 104-106 Caroline Street, Staten Island, New York is insufficient service of process.
Further, under Title 20 of the New York City Administrative Code ("Adm.Code") all professional process servers who serve process five or more times in any one year are required to obtain a license from the New York City Department of Consumer Affairs or face both civil and criminal penalties for failure to do so. See, Adm. Code, §§ 20-403 and 404.
(Formerly § B32-451.0). General Business Law ("GBL") § 89-cc provides that licensed process servers maintain a log book as follows:
Each process server shall maintain a legible record of all service made by him [her] as prescribed 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. Pursuant to 22 NYCRR § 208.29, process servers are required to produce their log books and licenses for traverse hearings as follows:
Whenever the court has scheduled a hearing to determine whether process was served validly and timely upon a party, and where a process server will testify as to the service, the process server shall be required to bring to the hearing all records in the possession of the process server relating to the matter at issue. Where the process server is licensed, he or she also shall bring the license to the court. (Emphasis added).
Here, the process server at the Traverse Hearing failed to produce his process serving license. The court finds that the process servers excuse for not having a copy of his licence on him for the Hearing is legally unacceptable. The server testified that his license since the time he effectuated service in this proceeding has expired, and since he has relocated to Georgia he has not renewed his servers license. Whether or not the server is currently working as a server is not the issue. The issue before this court was whether the server was licensed at the time of service. The server failed to produce a copy of his expired license, thus proving that his service was legally authorized. For this very reason in and of itself this court sustains Traverse.
Finally, . . . "[g]eneral principles concerning service lead to the conclusion that in a "conspicuous place" service the place of posting must be on the premises in a location preferably the entrance door, which, in the reasonable opinion of the process server, is sufficiently obvious to the occupant so to be expected to be seen" . . . ( see, 161 Williams Asso., v Coffee, 122 Misc 2d 37, 39-40 [Civ Ct, 1983].)
Here, the process server attached copies of the notice of termination to the interior doors and not to a conspicuous place the exterior doors where the respondents would have located copies of the notice of termination. The server testified that the premises appeared "abandoned" by the respondents. This being the case, the server should have also attached copies of the notice of termination to the building exterior entrance doors. Therefore, the server did not properly effectuate proper service on the respondents herein.
In this traverse hearing petitioner bears the burden of proof in establishing, by a preponderance of the credible evidence, that service on the respondents was properly effectuated ( See, Continental Hosts, Ltd., v Levine, 170 AD2d 430 (2d Dept 1991); Frankel v. Schilling, 149 AD2d 657 (2d Dept 1989).] Here, the petitioner failed to establish by a preponderance of credible evidence that service was properly effectuated on the respondents herein.
Accordingly, Traverse is sustained and the petition is dismissed without prejudice
This constitutes the decision and order of this court.