Opinion
570653/04.
Decided October 20, 2005.
Landlord appeals 1) from an order of the Civil Court, New York County, dated June 4, 2003 (Shlomo S. Hagler, J.), which directed a traverse on the issue of service; 2) from an order of the same court dated August 11, 2003 (Inez Hoyos, J.), which, inter alia, denied "with leave to renew" its motion to "deem" the affidavits of service of its process servers to be "prima facie evidence" of service; and 3) from an order of the same court, dated February 22, 2005 (Peter M. Wendt, J.), which sustained the traverse and dismissed the holdover petition.
Orders dated June 4, 2003 (Shlomo S. Hagler, J.) and February 22, 2005 (Peter M. Wendt, J.) affirmed with $10 costs. Appeal from order dated August 11, 2003 (Inez Hoyos, J.) dismissed, without costs, as superceded by the appeal from the order of February 22, 2005.
PRESENT: McCooe, J.P., Gangel-Jacob, Schoenfeld, JJ.
The traverse court's determination that service was not properly made pursuant to RPAPL § 735 should not be disturbed in view of the landlord's failure to produce the relevant mailing receipts and the tenant's credited testimony effectively controverting the affidavits submitted by the landlord's (non-testifying) process servers.
This constitutes the decision and order of the Court.