Opinion
L & T 55266/19
12-03-2019
CARLHART REALTY CORP., Petitioner-Landlord, v. Charles PARKS & Eva Parks a/k/a Eva Delarosa, Respondent-Tenants, "John Doe" and "Jane Doe," Respondent-Undertenants.
Attorneys for Petitioner: Chad Karp, Esq., Lazarus, Karp & Kalamotousakis, LLP, 7 Penn Plaza, 370 Seventh Avenue, Suite 720, New York, NY 10001 Attorneys for Respondents: Samuel Goldberg, Esq., Goldberg & Lindenberg, P.C., 6 East 45th Street, 14th Floor, New York, NY 10017
Attorneys for Petitioner: Chad Karp, Esq., Lazarus, Karp & Kalamotousakis, LLP, 7 Penn Plaza, 370 Seventh Avenue, Suite 720, New York, NY 10001
Attorneys for Respondents: Samuel Goldberg, Esq., Goldberg & Lindenberg, P.C., 6 East 45th Street, 14th Floor, New York, NY 10017
Clinton J. Guthrie, J.
BACKGROUND
In this nonprimary residence holdover proceeding, Petitioner made a motion for discovery and for use and occupancy. Respondents made a cross-motion for summary judgment on the basis of lack of personal jurisdiction. By Decision/Order dated November 4, 2019, the Court granted Respondent's cross-motion for summary judgment to the sole extent of setting the matter down for a traverse hearing on November 26, 2019 and held Petitioner's motion in abeyance pending the outcome of the traverse hearing. On November 26, 2019, the parties appeared with witnesses and the Court conducted a traverse hearing and reserved decision.
HEARING TESTIMONY AND EVIDENCE
Petitioner called its process server, Moaad J., as its sole witness. According to Mr. J.'s NYC Department of Consumer Affairs license, which was admitted into evidence as Petitioners' Exhibit 1, he is currently licensed as a process server. Mr. J. testified on direct examination as follows. He has been a process server since 2012 and has been employed by Howard Belfer, a process serving agency, for 4-5 years. He serves approximately 100 papers per week and 20 per day. He received the papers for this proceeding from his office and recalled that the copies were identical to the originals.
After Mr. J.'s logbook was admitted into evidence on consent as Petitioner's Exhibit 2, he refreshed his recollection and testified that he made an attempt at service at 45-26 44th Street, Apartment 4H, Sunnyside, New York (hereinafter "the subject premises") at 6:04 PM on March 8, 2019. He rang the bell and knocked on the door. No one answered and he "waited a minute" before going on to his next service. He also explained how he uses an app, Independent Server, which records the details of the service location, and additionally notes the particulars of the service in his logbook by hand at or about the same time.
Mr. J. then testified that he returned to the subject premises on the following Monday, March 11, 2019. He attempted service again, did not receive an answer, and taped up 4 copies (after initially stating that he had taped 6) for each Respondent. He testified that he used scotch tape. He then noted the details of the service into his logbook and recorded the service in Independent Server by taking a photograph. A photograph of the front door of the subject premises that he took at the time was admitted into evidence as Petitioner's Exhibit 4. Afterwards, Mr. J. then went back to his office to prepare mailings and his affidavit of service. He testified that he prepared envelopes for regular and certified mailings to all Respondents for the subject premises address and two additional mailings by certified mail to an address in Texas. He explained that he also swiped the envelopes through a postage machine and took them to a post office in Jamaica, Queens for mailing. The certified mail receipts were admitted into evidence as Petitioner's Exhibit 3. Mr. J.'s direct examination testimony concluded with testimony that he completed his affidavit of service after the mailings and reviewed it against his logbook and the information from the Independent Server app.
The photograph contained printed material from the Independent Server app but no foundation was laid for this material, so only the photograph itself was admitted.
On cross-examination, Mr. J. testified that he did not recall how he gained entry into the subject building on March 8, 2011 or March 11, 2011. He also confirmed that there was nothing on the door in the photograph admitted as Petitioner's Exhibit 4. On redirect, he testified that he taped the copies of the court papers on the door right before the took the photograph (Exhibit 4). Upon the conclusion of redirect, Petitioner rested.
Respondents Eva Parks and Charles Parks then testified. On direct examination, Eva Parks testified as follows. She lives at the subject premises and in Texas. She did not recognize the Notice of Petition and Petition and said she had not seen the papers on her door or under her door on March 11, 2019 and had not received them by certified mail.
On cross-examination, Ms. Parks explained that she travels back and forth to Texas and received a Texas ID because she could not vote without obtaining it. She travels every three months to Texas and stays between a week and a month at a time. She testified that she was in New York the entire month of March 2019 and was taking care of elderly parents. At the time, she would get up at 4:30 AM to leave by 5:00 AM, and would be home at midnight, seven days a week. She acknowledged that in her Answer, she was referred to as a "snowbird" and said she understood the term to mean someone who travels south. She elaborated that she travels to Texas to "see [her] grandbabies." She acknowledged being in Texas in September, December, February, April, and August. When asked if she anyone was home on March 8, 2019, she replied that she didn't recall but was pretty sure that her husband was home. She also admitted to having no specific recollection of either date at issue (March 8th & March 11th). On redirect, Ms. Parks stated that the subject premises was her home and that she only visited Texas to see her grandchildren.
Charles Parks testified on direct examination that he lives in the subject premises. He acknowledged that he had seen the Notice of Petition and Petition before and that a copy was mailed to him. Upon receiving it, he brought it to his attorneys. He denied seeing a copy of the papers on his door on any day in March 2019 and denied receiving a copy by certified mail. On cross-examination, he testified that he is not sure if he traveled to Texas in March and professed a lack of recollection generally about March 2019. He "thinks" he was in New York in March but admitted that this is solely based on what his wife, Eva, has told him.
DISCUSSION
At a traverse hearing where personal jurisdiction is at issue, it is a petitioner's burden to prove service according to Real Property Actions and Proceedings Law (RPAPL) § 735 by a preponderance of the evidence. See, e.g. , Masaryk Towers Corp. v. Vance , 12 Misc. 3d 1172(A), 820 N.Y.S.2d 843 (Civ. Ct. NY County 2006) ; see also Wells Fargo Bank NA v. Chaplin , 65 A.D.3d 588 (2d Dep't 2009). Under RPAPL § 735, "if upon reasonable application admittance cannot be obtained and such person found, [service shall be made] by affixing a copy of the notice and petition upon a conspicuous part of the property sought to be recovered or placing a copy under the entrance door of such premises; and in addition, within one day after such affixing or placement, by mailing to the respondent both by registered or certified mail and by regular first class mail." A "reasonable application" requires more than one attempt during normal working hours before resort is made to conspicuous place service. See Eight Associates v. Hynes , 102 A.D.2d 746 (1st Dep't 1984), aff'd , 65 N.Y.2d 739 (1985).
Here, Mr. J. demonstrated that he is a process server licensed by the NYC Department of Consumer Affairs. He testified credibly that he made two trips to the subject premises, once on March 8, 2019 at 6:04 PM and once on March 11, 2019 at 9:01 AM. He also testified credibly that he prepared copies to be served to each Respondent by certified and regular mail and mailed them at a US post office in Jamaica, Queens on March 11, 2019. The certified mail receipts (for all 4 Respondents at the subject premises and for Charles and Eva Parks at an address in Fort Worth, Texas) were admitted into evidence. Respondents' respective testimonies did not credibly refute the testimony about the attempts at service or the mailings. Eva Parks testified that she was in the subject premises during the month of March 2019 but had no specific recollection of the dates at issue and admitted that she was away from the apartment from 5 AM until midnight 7 days a week at the time. Charles Parks also had no specific recollection of the dates at issue or the month of March 2019 in general. He also acknowledged receipt of the court papers by regular mail. To the extent that both Eva and Charles Parks denied receipt by certified mail, the Court does not find this to rebut mailing by certified mail, which is what RPAPL § 735 requires. See, e.g. , Baer v. Lipson , 194 A.D.2d 787 (2d Dep't 1993), appeal dismissed 83 N.Y.2d 788 (1994) ; cf. Leland House, Inc. v. Wigfall , 98 Misc. 2d 355, 413 N.Y.S.2d 831 (App. Term 1st Dep't 1979), affd 78 A.D.2d 783 (1st Dep't 1980).
As for affixing of the Notice of Petition and Petition, Mr. J.'s testimony was inconsistent. First, he testified that he taped four copies to the entrance door on March 11, 2019, and then noted the service in his logbook and recorded the service in the Independent Server app by taking a photograph. The photograph admitted as Petitioner's Exhibit 4 does not depict any copies of the Notice of Petition and Petition on the entrance door to the building (which Mr. J. admitted on cross-examination). Later, on redirect, Mr. J. testified that he taped the copies up right after he took the photograph and gave a confusing explanation about how he must turn on the app before going up the elevator so that he has service to load the GPS coordinates (which did not clarify the variance from his initial testimony).
Affixing (or placement under the entrance door) is a required component of conspicuous place service under RPAPL § 735. See, e.g. , Bruckner by the Bridge, LLC v. Gonzales , 48 Misc. 3d 1211(A), 18 N.Y.S.3d 577 (Civ. Ct. Bronx County 2015) (Finding improper service where a photograph submitted into evidence did not depict court papers taped to the entrance door); Steltzer v. Eason , 131 AD2d 833, 834 (2d Dep't 1987) (Affixing that does not " ‘ensure a genuine adherence’ " is inadequate) (quoting PacAmOr Bearings, Inc. v. Foley , 92 AD2d 959, 960 (3d Dep't 1983) ). The Court notes both Eva and Charles Parks' testimonies that they did not see copies of the Notice of Petition and Petition on their entrance door but due to the lack of any specific daily recollections from March 2019, their testimony on this point is given minimal weight. Nonetheless, Petitioner failed to carry its burden of demonstrating affixing by a preponderance of the evidence. The only evidence of affixing came via Mr. J.'s testimony. However, the sole photograph taken by him on the day of service that was admitted into evidence does not show any papers affixed to the entrance door. See Bruckner by the Bridge, LLC, supra . Moreover, Mr. J.'s initial testimony that the photograph was taken after he taped copies to the door was not credibly amended by his later testimony, on redirect, that the taping was done after he took the photograph. Mr. J. had no recollection of how he entered the building on March 11th, his explanation for the change in testimony about when the photograph was taken (regarding the need for his app to have service before entering the building's elevator) was unconvincing, and nothing in his logbook indicated any details of the affixing.
The type of service is merely listed as "C" in the logbook, which presumably means "conspicuous," but no testimony providing an explanation of the notation was given.
The Court takes the opportunity to note that 6 R.C.NY § 2-233a requires all licensed process servers to maintain records in electronic format and 6 R.C.NY § 2-233b requires them to carry at all times a device to establish electronically the details of each service and attempted service. Although Mr. J. made reference to the Independent Server app that he uses, no electronic record of the service (other than the photograph) was offered by Petitioner. While submission of the electronic records at a traverse hearing is not required, the regulations requiring them ensure that there is documentation of the service that is "independent and disinterested." 505 West 143rd Street HDFC v. Coppedge , 090627/2012, NYLJ 1202620088002, at *1 (Civ. Ct. N.Y. County 2013).
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Accordingly, traverse is sustained and the Court grants Respondents' cross-motion for summary judgment based on lack of personal jurisdiction. Petitioner's motion for discovery and for use and occupancy is denied as moot and without prejudice. The immediate proceeding is dismissed, without prejudice. Petitioner is directed to pick up its exhibits within 35 days or they may be destroyed at the Court's discretion in compliance with DRP-185.