Opinion
LT 96992/05.
Decided June 22, 2006.
Amsterdam Lewinter, LLP, New York City (Hal L. Rose of counsel), for petitioner.
Lynn M. Kelly, Esq., MFY Legal Services, Inc., New York City (Allegra Chapman of counsel), for respondent.
This summary non-payment proceeding was commenced by notice of petition and petition. The affidavit of service was filed on or about November 7, 2005. In his affidavit, the process server claimed conspicuous place service.
Respondent's social worker filed a pro se answer on behalf of respondent who was allegedly hospitalized at that time. The answer alleged that respondent did not receive a copy of the Petition and Notice of Petition. Respondent thereafter retained Counsel and subsequently filed the instant motion to dismiss pursuant to CPLR 3211(a)(8) on the ground of failure to obtain personal jurisdiction over respondent because respondent was not properly served with the Notice of Petition and Petition. Respondent's motion papers argue, inter alia, that the alleged service by "conspicuous place" service was not properly made because no "reasonable application" was made to effectuate service by personal or substituted service prior to resorting to conspicuous service as required by RPAPL § 735. Respondent argued that respondent was not living at the apartment at the time of the alleged service because the locks were changed after a fire and petitioner did not provide her with keys. Respondent alleged that since petitioner had reason to know that respondent was not living at the apartment, the alleged attempts to personally serve respondent at the subject apartment did not constitute "reasonable application" as required by RPAPL 735.
A traverse hearing was held on April 10 and June 5, 2006. Petitioner's process server, Scott M. Sturniolo, testified that he did not remember when he served the petition and notice of petition on respondent without first refreshing his recollection by looking at his "log book". After consulting his alleged "record" of service, Petitioner's Exhibit 3 described in detail, infra, Sturniolo testified that after two unsuccessful attempts at personal service at the subject premises, on November 1 and November 3, 2005, Sturniolo served respondent by conspicuous service on November 3, 2005 at 2:41 PM. Sturniolo testified that he knocked on the door and rang the bell, waited his usual time (30-40 seconds) and got no response, checked the hallway, floor and door and pushed the notice of petition and petition under the door. Sturniolo testified that he has, other than looking at documents, no independent recollection of what happened on November 3, 2005.
Sturniolo testified that made a certified mailing to the "prime" at the subject premises and an additional mailing to respondent at 81 Columbus Street. He testified that he filled out the affidavit of service, had it notarized and filed it with the Court on November 7, 2006. Petitioner's Exhibit 4 is a "certified mailing sheet" containing notations of service by certified mail on respondent at the subject premises, 87 Columbus Street, apt 13A, and at 81 Columbus Street, Apt 5B. The certified mailing sheet is stamped with the stamp of the Ansonia Station New York, USPS, dated November 4, 2005.
Respondent testified that she lived at the subject premises for approximately nine years. Vance testified that there was a fire at the subject premises on March 25, 2005 and that her fiancé, who was the father of her child, died in the fire. Respondent testified that she is not currently residing at the subject premises but has been staying at 64 Essex Street for more than a year. She testified that the landlord changed the locks on the subject apartment after the fire and that she was not given keys to the new locks although she repeatedly asked for them. She testified that she periodically goes to the subject premises to check on the progress of the repairs and to get her mail. She testified that the superintendent gives her access to the subject apartment when she goes there.
Upon being shown the notice of petition and petition, Vance testified that she never saw those documents until December 19, 2005, well after the first court date of December 5, 2005. She testified that although she frequently checked her mail at the subject premises and checked the subject apartment, she did not find copies of the notice of petition and petition either in her mail or posted on or under the apartment door prior to the first court date. She testified that she first learned about the proceeding when she got a postcard from Court while she was in the hospital. Respondent testified that during her hospitalization she had a friend, Michael Sanbar, check her mail at the subject premises and had another friend, Carol, check the subject apartment. She testified that Sanbar brought the postcard to her in the hospital. Respondent testified that in late October or early November, 2005, prior to her admission to the hospital she went to check the subject apartment and she found the apartment door open, and she went to the superintendent because no one was supposed to be there. She testified that she saw no legal papers, and that the apartment was in disarray.
Petitioner failed to prove that a "reasonable application" to effectuate personal or substituted service was made prior to resorting to conspicuous place service as required by RPAPL § 735. The respondent credibly testified that she was not living at the subject apartment at the time of the alleged service because she was not given the keys and was denied access by petitioner. Thus the attempt at personal or substituted service at the subject premises did not satisfy the "reasonable application" requirement of RPAPL § 735. Petitioner was aware that respondent could not have been in the apartment at the time personal service was allegedly attempted, yet it caused the process server to attempt delivery at the apartment to which it had already refused to give respondent a key.
RPAPL § 735 sets forth requirements for service of process designed to ensure that the tenant, in a summary proceeding, receives notice of the landlord's claim and gets an opportunity to be heard in accordance with constitutional due process requirements.
The "fundamental requisite of due process of law is the opportunity to be heard." Grannis v. Ordean, 234 US 385, 394 (1914). "A method of service prescribed by the legislature must be "reasonably calculated, under all the circumstances, to apprise [the] interested part[y] of the pendency of the action". ( Bossuk v. Steinberg, 58 NY2d 916, 460 NYS2d 509 [1983] [quoting Mullane v. Central Hanover Trust Co, 339 US 306, 314)." Silvestri v. Mandell, 19 HCR 735, NYLJ, December 18, 1991, p. 24, col 6, (Civ Ct, Kings Co).
Pursuant to RPAPL 735 three methods of service are available to the petitioner. The first is personal delivery to the respondent. An equally acceptable alternative is "by delivering to and leaving personally with a person of suitable age and discretion who resides or is employed at the property sought to be recovered, a copy of the notice of petition and petition, if upon reasonable application admittance can be obtained and such person found who will receive it . . ." RPAPL 735(1).
The first two methods, personal delivery and substituted service, are equally acceptable. These are the preferred methods of service provided for in the language of RPAPL 735. The third, affixing a copy of the notice and petition upon a conspicuous part of the property (usually the entrance door of the actual premises sought to be recovered) or placing a copy under the door, is known as "conspicuous" service. Thus, ". . . the conspicuous place' method of service was deemed to be the least desirable of the three methods made available." Eight Associates v. Hynes, 102 AD2d 746, 748 (1st Dept, 1984), aff'd, 65 NY2d 739 (1985).
RPAPL 735 requires that "reasonable application" to serve by personal or substituted service be made before resorting to conspicuous service. Thus, a process server must make a realistic attempt to achieve personal delivery to respondent or a person of suitable age and discretion at the subject premises before employing conspicuous place service. Eight Associates v. Hynes, 102 AD2d 746 (1st Dept, 1984); Palumbo v. Clark's Estate, 94 Misc 2d 1, (Civ Ct, Bronx Co, 1978).
Various courts have held that the "reasonable application" requirement is not satisfied by attempted service at the subject premises where the petitioner had reason to know that respondent would not be at the premises at the time that attempts at personal service were made.
service by affixation and mailing is permitted only after" reasonable application" is made for admittance and personal delivery. . . . there must be at least a "reasonable expectation of success" in finding a person on the premises to whom delivery may be made. . . .
FPTK, LLC v. Paradise Pillows, Inc, 9 Misc 3d 1125 (A), 2005 WL 2922515, (NYC Civil Court, Kings Co).
The courts held that one attempted service during regular business hours is not a "reasonable application" to achieve personal delivery, holding that the process server could not have a reasonable expectation that an individual would be home during normal working hours. Eight Associates v. Hynes, 102 AD2d 746 (1st Dept, 1984), aff'd, 65 NY2d 739 (1985); Brooklyn Heights Realty Co v. Gliwa, 92 AD2d 602 (2nd Dept, 1983).
Various courts have held that attempts at personal or substituted service at the subject premises do not satisfy the "reasonable application requirement when a respondent no longer resides at the subject premises and the landlord has knowledge of this. In 30-40 Associates Corp v. Destefano, 2003 NY Slip Op 50625(U), 2003 WL 1701527 (App Term, 1st Dept, 2003) the Court held:
The summary proceeding was properly dismissed because personal jurisdiction was not obtained over the tenant. There was no "reasonable application" under RPAPL § 735 to effect personal or substituted service before the resort to "conspicuous place" service. Landlord knew the apartment was empty at the time it commenced the proceeding, as tenant Frank DeStefano had been removed by the police at landlord's instance. Thus the "attempt to gain admittance was, as a practical matter, no attempt at all" . . .
In BHNJ Realty Corp v. Rivera, 144 Misc 2d 241, (Civ Ct, NY Co, 1989, Tom, J.), Justice Peter Tom reasoned that attempts to serve respondent at the subject premises and subsequent conspicuous service under RPAPL § 735 when respondent was incarcerated at Rikers Island were not sufficient to satisfy due process requirements. Justice Tom's decision stated:
The purpose of the statutory scheme pertaining to service of process is designed to give notice to Defendant of the commencement of an action or proceeding and to confer jurisdiction of the Court over the parties. Even though the statute pertaining to service of process does not mandate that Respondent must receive the notice, constitutional due process requires that, if feasible, service of process by Petitioner must be reasonably calculated to apprise the party of the impending action. Therefore, good faith on the part of the Petitioner to give notice to Respondent of the action is inherent in the spirit of the statutory scheme pertaining to service of process. ( Dobkin v. Chapman, 21 NY2d 490, 289 NYS2d 161, 236 NE2d 451; City of New York v. Chemical Bank, 122 Misc 2d 104, 470 NYS 2d 280). id., at 243.
. . . .
If a Petitioner has knowledge of the whereabouts of Respondent and that service of process at the premise in the manner prescribed by statute will not give notice to Respondent then the attempt to serve Respondent by the statutory modes of service will not meet constitutional due process standards since it is not reasonably calculated to apprise Respondent of the proceeding. ( City of New York v. Chemical Bank, supra; Solak Estates, Inc v. Goodman, 102 Misc 2d 504, 425 NYS2d 906).
Here, respondent's uncontroverted testimony established that petitioner had to know respondent was not staying at the subject premises, that she had not been given keys to the new locks on the apartment door and had to get the superintendent to give her access on a limited basis to check the apartment.
In determining whether attempts at personal delivery are made with a "reasonable expectation of success", an agent's knowledge will be imputed to the landlord, and the landlord has an obligation to convey its knowledge to its attorney, who has an obligation to convey it to the process server.
FPTK, LLC v. Paradise Pillows, Inc, 9 Misc 3d 1125 (A), 2005 WL 2922515, (NYC Civil Court, Kings Co)
Moreover, petitioner in its memorandum of law states that respondent was additionally served at 81 Columbus Street 5B, the address where petitioner believed respondent was residing. The affidavit of service of the notice and petition shows that the papers were served on that address by mail only. Thus Petitioner admittedly knew that respondent was not living at the subject premises, but was living elsewhere when the notice and petition were served. Yet petitioner claims that the process server made reasonable attempt at personal or substituted service by attempted delivery to respondent at the very apartment which petitioner had prevented the tenant from entering. The Court finds that petitioner has not satisfied the "reasonable application" requirement and thus has not established that service was effectuated on respondent in accordance with RPAPL § 735.
Dismissal of this proceeding will not leave petitioner without a remedy. In BHNJ Realty Corp v. Rivera, 144 Misc 2d 241, supra, Justice Tom held that the Court has authority to fashion additional service requirements where service under RPAPL § 735 is impractical. Justice Tom noted that NYC Civil Court Act § 2102 provides that the CPLR . . . shall apply in this court as far as the same can be made applicable and are not in conflict with this act. The Court found that CPLR 308(5) permits the Court to fashion a method of service of process reasonably calculated to inform defendant of the impending action when the statutory modes of service are impractical and unavailing. Here, petitioner may commence a new proceeding by order to show cause pursuant to RPAPL § 733(1) and may apply for service in another manner conforming to constitutional due process requirements.
Additionally there is a separate, independent ground under which the Court finds petitioner failed to establish service of the notice and petition upon respondent. The Petitioner's process server's record of services allegedly performed by him failed to comply with the record keeping requirements for process servers. As is explained below, the process server's testimony concerning the purported service, of which he had no independent recollection but which was based solely on his inadequately kept record, was not credible and not sufficient to establish that service was properly effectuated.
Both the General Business Law and the Department of Consumer Affairs Regulations contain very detailed, precise requirements for the keeping of records by licensed process servers, including the requirement to keep a chronological record of services performed in a bound, paginated volume. General Business Law § 89-cc provides
89-cc. Process server records
1. Each process server shall maintain a legible record of all service made by him 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 he inaccurate entry. All other methods of correction, including but not limited to erasing, opaquing, obliterating or redacting, are prohibited. (Emphasis added)
The Rules of the New York City Department of Consumer Affairs, 6 NYC Admin Code § 2-233 provide:
(A) Duty of individual licensees. Each process server shall keep records in compliance with the provisions of § 89-c of the General Business Law, as follows:
(1) Each process server shall maintain a legible record of all service made by him as prescribed in this section.
. . . .
(B) Licensees who serve process shall also include in their records the following:
. . . .
(5) Records shall be kept in chronological order in a bound, paginated volume.
(6) 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. (Emphasis added).
In addition, under the Uniform Rules of the Civil Court of the City of New York, process servers who testify at a traverse hearing are required to produce all records relating to the service being challenged:
208.29 Traverse hearings. 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 shall also bring the license to the court.
Process servers are required to maintain records for three years. General Business Law § 89-gg.
The Department of Consumer Affairs regulations require that licensed process servers strictly conform to all requirements regarding service of process:
the licensee shall at all times strictly and promptly conform to all laws, rules, regulations and requirements of the federal, state and municipal authorities relating to conduct of licenses and the service of process in the State of New York and the preparation, notarization and filing of affidavits of service and other documents now in force or hereafter adopted during any license period.
Rules of the City of New York Department of Consumer Affairs, 6 NYC Admin. Code § 2-234.
The Court of Appeals in Barr v. Department of Consumer Affairs of the City of New York, 70 NY2d 821 (1987), has upheld the regulation mandating that process servers' record keeping requirements be strictly enforced. the Court held:
[T]he Department of Consumer Affairs must depend on the accurate record-keeping practices of its licensees as a means of monitoring the industry and uncovering wrongful practices.
. . . .
Furthermore, civil litigants must depend on the accuracy of process servers' records to prove that proper service was or was not made (see, Siegel, NY Prac. § 79). A process server whose records were illegible, inaccurate and otherwise plainly unreliable lacks credibility. The likely result is that many of the clients of such process servers will be unfairly penalized when they are called upon to prove proper service in traverse hearings.
Id., at 823.
See also First Commercial Bank of Memphis N.A. v. Ndiaye, 189 Misc 2d 523, 525, (Sup Ct, Queens Co, 2001):
Compliance with regulations governing service of process by licensed process servers is strictly enforced. . . . The procedural requirements help to ensure reliability of the records by making any failure to comply with them unlawful.
Here, petitioner's process server failed to produce a proper chronological record of services in a bound, paginated volume as required by GBL § 89-cc and Department of Consumer Affairs Regulations § 2-233. Sturniolo's alleged "record" of services (petitioner's 3), consisted of eleven sheets with a blank front and back cover, bound at the top by staples and grey plastic tape. The first sheet is a cover page which self-servingly states that it is a business record kept in the regular course of business pursuant to CPLR 4518 and the rules and regulations of the Department of Consumer Affairs, prepared within one day of service, property of Scott Sturniolo. The cover sheet also states "OPENING DATE: 11/1/05, CLOSING DATE: 11/7/05." The remaining ten sheets consecutively numbered at the bottom front of each sheet, have only one service recorded on each sheet, for a total of ten alleged services. The front of each sheet is a xeroxed form containing spaces to fill in names, addresses and dates of service, and items to be checked off for method of service, descriptions of the party served and the premises, filled in with details of each alleged service. On the reverse side of each sheet is a copy of the first page of the document allegedly served, ie., notice of petition or three day notice. All ten of the alleged services contained in this document occurred on the same date, November 3, 2005, with all first attempts at service done on November 1, 2005.
This purported "logbook" produced by Sturniolo does not conform to the GBL and Dept of Consumer Affairs Regulations record keeping requirements for process servers. GBL § 89-cc and Department of Consumer Affairs Regulation § 2-233 require that service records be kept in chronological order in a bound volume and that corrections to the record may only be made by drawing a straight line through the entry and making the correction directly above the entry. These provisions contemplate that a process server's record of services be recorded in a pre-bound paginated volume with chronological entries of each service on successive lines. These requirements insure that the record can be examined to determine if the alleged services could feasibly be accomplished in the given time frame, and also insures that the record cannot later be illegally altered.
The process server's "log" herein is not a "chronological record contained in a bound, paginated volume" but is merely collection of individual sheets, consisting of individual pages for each service allegedly done on the same day, November 3, 2005. These sheets could be bound together at any time, including immediately before the traverse hearing. This document could be easily altered by taking out or reshuffling pages and rebinding them.
Sturniolo testified that he did not carry the purported logbook with him when he made the services, but that he made the records at night when he returned home. This does not conform to the requirement for business records to be admissible as evidence, that they be recorded at the time of the event or at a reasonable time thereafter. CPLR 4518(a). Licensed process servers may serve a large number of documents in one day. Sturniolo testified that he could easily do 30 or 40 services at Masaryk Towers in one day. Such a record would have to noted immediately after each service; waiting until the end of the day to record such services would compromise accuracy and would provide an opportunity to alter the records to serve the process server's needs regarding the various times services were allegedly performed.
Various courts have found that documents similar to the one produced here did not satisfy the GBL and Department of Consumer Affairs Regulations requirements for maintenance of service records by process servers. In First Commercial Bank of Memphis N.A. v. Ndiaye, 189 Misc 2d 523, (Sup Ct, Queens Co, 2001) the Court held that a computer generated log book did not comply with the record keeping requirements:
The statute is very clear as to how corrections should be handled. A single line should be drawn through the inaccurate entry, and the correction made directly above. All other methods of correction are prohibited. With a computer record, entire entries can be altered, deleted, or added within minutes at any time, even just prior to the traverse hearing. There is no indication of when the printout was made. Furthermore, even if there were an indication as to when it was printed, there is no guarantee the entry was truthful. The log, as it exists, can easily be altered to meet the requirements of the process server.
id., at 526.
In Silvestri v. Mandell, NYLJ December 18, 1991, p. 24, col 6, 19 HCR 735, (Civ Ct, Kings Co), the Court found that three loose pages, which the process server claimed represented all of his records of all services he made on the date of the service in question, did not comply with the record keeping requirements. The Court noted that "loose sheets can be altered, rewritten, removed or added to at any time. A bound book, in contrast cannot be altered or redacted without detection, and is thus more likely to contain a complete and accurate record of services." The Court found that although the there was no suggestion that the process server falsified his records or testified untruthfully about the service he made, dismissal was warranted:
As recently held in Inter-Ocean Realty Assoc. V JSA Realty Corp. NYLJ July 17, 1991, p. 24, col 6 [Civ Ct, NY Co]), "courts must strictly uphold compliance by process servers with the regulations to soundly effectuate a public policy that prevents questionable service practices. As a result of such legislative (administrative) intent this Court is inclined to prevent proliferation of improper service of process through dismissal of a case . . ." I hold, also that dismissal is warranted based on the process server's failure to produce the records required by the rules of court.
In this traverse hearing petitioner bears the burden of proof in establishing, by a preponderance of the credible evidence, that service on the respondent was properly effectuated. Frankel v. Schilling, 149 AD2d 657 (2nd Dept, 1989).
Plaintiff has the burden of proving his case by a fair preponderance of the credible evidence. If, at the close of the proofs, the evidence as a matter of logical necessity is equally balanced, plaintiff has failed to meet his burden and the cause of action is not made out.
Rinaldi Sons, Inc v. Wells Fargo, 39 NY2d 191 (1976).
Here, petitioner's process server testified that he had no independent recollection of the alleged attempted service of the notice and petition on respondent. His entire memory is based on a sheet of paper attached to other sheets of paper about different services, which was allegedly done that evening when he returned home, which is not part of a legally sufficient logbook. The Court does not find Sturniolo's testimony to be credible.
However, respondent credibly testified that although she repeatedly checked the subject apartment and her mail at the subject premises, she did not find copies of the petition and notice of petition either conspicuously posted at the subject premises or in her mailbox until she found it under the apartment door on December 19, 2005, well after the first court date of December 5, 2005. Respondent further testified that during her hospital stay she had friends check her mail and the subject apartment, but they never found the petition or notice of petition at the subject premises or in her mail. The Court finds respondent's testimony to be far more credible than that of the process server, who did not have any independent recollection of the service of the notice and petition, but merely testified based on an illegally kept log.
Testimony of a process server who fails to keep records in accordance with statutory requirements cannot be credited. See Barr, 70 NY2d at 822-23, 523 NYS2d 435, 517 NE2d 1321 ; Inter-Ocean Realty Associates v. JSA Realty Corp, 152 Misc 2d 901, 903, 587 NYS2d 837 (NYC Civil Court, 1991). Many months passed between the time of alleged service and the traverse hearing. The unaided memory of the process server, who may have served hundreds of people in the interim, is unreliable.
First Commercial Bank of Memphis v. Ndiaye, 189 Misc 2d 523, 526 (Sup Ct, Queens Co, 2001).
In 33 SP Realty Corp v. Stradford, 31 HCR 433A, NYLJ, August 6, 2003, p. 24, col 6, (Civ Ct, Richmond Co) the Court held:
A significant period of time has passed and the reliance upon pure memory without the assistance of records that are mandated to be kept by statute is unreliable.
Here, the process server admitted that he had no independent memory of the event, but relied on his written record, which itself did not even satisfy the requirements legally mandated for a process server's log.
The Court finds that the petitioner has failed to prove by a preponderance of the evidence that the notice of petition and petition were properly served on respondent in accordance with RPAPL 735. Accordingly, personal jurisdiction has not been obtained over respondent.
For all the foregoing reasons, after a traverse hearing, Court's assessment of the credibility of the witnesses and careful consideration of the documents in evidence, traverse is sustained and the petition is dismissed. This constitutes the decision and order of the Court.