Respondent tenant moves to vacate the warrant of eviction and judgment entered on default and to dismiss the petition for lack of personal jurisdiction. The action was stayed by this court pending this decision.

Plaintiff has the burden to prove by a preponderance of credible evidence that service on defendant was properly effectuated. Frankel v Schilling, 149 AD2d 657 (2d Dept 1989).

The parties appeared for a traverse hearing on April 5, 7, and 8, 2011.

Before the hearing began, counsel met with the court. Mr. Freddie Gatlin, the process server, produced the certified mail receipts to petitioner's counsel who presented them to respondent's counsel before the court. The court saw the receipts and saw the receipts in respondent's counsel's hand. Respondent's counsel states he returned the receipts to petitioner's counsel. Counsel disagree as to who had them last. When the trial began, the receipts were missing.

Mr. Gatlin testified credibly that he served the petition and notice of petition on October 27, 2010 at 11 Hanover Square, 21st floor at 10:45 am. Mr. Gatlin testified that he drove down [*2]to the Wall Street area with a friend. He entered the building lobby where he was asked for identification. He disclosed where he was going and this was written in a book. Mr. Gatlin described the office as having a glass wall and glass doors. A glass wall separates the elevator area which is not carpeted from the office area which is carpeted. A gentleman allowed Mr. Gatlin's entry by pressing a button which unlocked the door. Mr. Gatlin had seen this man in the office three or four times before because Mr. Gatlin has served papers there 3 or 4 times a year since 2002 or 2003. Mr. Gatlin identified himself as a process server and inquired whether the gentleman was Travers O'Keefe. The man said no and refused to sign for the documents. Mr. Gatlin asked the gentleman to deliver the documents to respondent. The man acquiesced and accepted the papers. As Mr. Gatlin exited the office, he saw the gentleman walk to an office in which Mr. Gatlin saw a woman to whom the gentleman showed the papers. Mr. Gatlin left the building. He prepared the packages for mailing by depositing copies of the notice of petition and petition in the envelopes addressing them and taking them to the post office where he paid for certified mail and regular mail.

Mr. Gatlin was cross-examined about the affidavit of service. In the affidavit of service, dated October 28, 2010, which is in evidence, the process server states that on October 27, 2010 at 10:45 am, he personally delivered the notice of petition and petition to "John Doe (refused name) authorized agent, a person of suitable age and discretion, who was willing to receive same and who resided or was employed at said property." He described the person served as male, white, black hair, 21 to 35, over 6 feet, 161 to 200 lbs. who "refused name." On October 28, 2010, he mailed copies of the petition and notice of petition by regular and certified mail.

Mr. Gatlin credibly explained that he wrote "refused to give name" because when Mr. Gatlin gave the gentleman the opportunity to identify himself, he did not. It is Mr. Gatlin's practice to ask if the person being served is respondent. Sometimes the person identifies himself/herself and sometimes they do not.

Contrary to respondent's argument, that Mr. Gatlin does not recall the color of the shirt worn by the gentleman who allowed him access to the office or from whom he borrowed a car on October 27, 2010 does not undermine Mr. Gatlin's credibility.

Respondent challenges the service because Mr. Gatlin failed to ask the gentleman who opened the door for him whether he was an employee of respondent. Mr. Gatlin is not required to make such an inquiry. His conclusion based on his brief conversation that this was a person of suitable age and discretion was reasonable. Likewise, it was reasonable for Mr. Gatlin to conclude that the gentleman was an employee in light of the fact that he unlocked the door allowing Mr. Gatlin to gain entry into a locked office and he had seen the man in respondent's office before and he saw the man take the papers to a woman in a nearby office and the man took the papers and agreed to give them to respondent.

Mr. Richard Travers testified that he is CEO of respondent. He started the corporation in 1986 and rented space at 11 Hanover Square since 1989. He denied that he received the notice of petition and petition in this case in October 2010. However, the receptionist or controller faxed the notice of petition and petition to him on or about March 14, 2011 when Mr. Travers became aware of the notice of eviction. He does not work in the New York office and thus was not in the office on October 27, 2010. A receptionist is present from 9 to 5 Monday through Friday. Mr. Travers has received legal papers which were served on respondent at the NYC office before. [*3]"Eventually, in due course" he testified, he receives documents when they are faxed or scanned to him. When the New York office receives certified mail, "these documents are also ultimately presented to me." Mr. Travers denied that he employed a man in the New York office matching the description of the man identified by Mr. Gatlin. Mr. Travers described the five men working for respondent at the time of the service. To demonstrate his course of conduct, Mr. Travers acknowledged that he received the rent demand when it was scanned and e-mailed to him from the New York City office. He immediately sent a letter to the landlord.

Mr. Travers's credible testimony established that his employees did not send to him, by e-mail, fax or otherwise, the notice of petition and petition. However, this office failure does not undermine Mr. Gatlin's credible testimony that a person of suitable age and discretion and employee was properly served at respondent's office. Further, the court must reject Mr. Travers's testimony that no employee fits the description of the person Mr. Gatlin described. The first male employee that Mr. Travers described and identified as Mr. Van Wie fits the description precisely. Finally, in march 2011, when Mr. Travers became aware of the imminent eviction, his staff scanned the notice of petition and petition and sent it to him. If respondent had not been served with the notice of petition and petition in October 2010, then where did they get it to forward to Mr. Travers in March 2011?

When a licensed process server is called to testify at a traverse hearing, he is required to bring with him all records related to that service.^[FN1] Mr. Gatlin's license and log book containing that page are in evidence.

As a licensed process server, Mr. Gatlin is required to keep a log. The page on which Mr. Gatlin recorded this service, 538202, was in evidence. He testified that he completes each entry in the log as he receives the documents from his client for service. He completes the details of service after he completes each service. In this case, he completed the log book entry as soon as he left the office. The log entry for service of process in this action includes all the information required by GBL §89-cc.^[FN2] [*4]

Contrary to respondent's objection, Mr. Gatlin sets forth in his log, as he is required to do, the date on which he mailed the documents.

Contrary to respondent's objection, the pages in the log book are consecutive. However, out of 72 entries in the log book, 2 entries on page 588208 are blank. This is a violation of the Administrative Code. If a process server fails to comply with the Administrative Code, his license may be suspended or revoked by the New York City Department of Consumer Affairs. Barr v Department of Consumer Affairs of the City of New York, 70 NY2d 821 (1987). Defendant would have the service declared invalid as a result of this violation. Indeed, when a process server fails to produce his license or log book at a traverse hearing, some courts have dismissed the action for failure to comply with the Administrative Code. Rose Assoc v Becker, 153 Misc 2d 900 (Civ Ct, NY County 1992); First Commercial Bank of Memphis NA v Ndiaye, 189 Misc 2d 523 (Civ Ct, Queens 2001). However, otherwise valid service of process will not be invalidated by reason of non-compliance with Administrative Code provisions regarding the licensing of process servers. Timur on Fifth Ave. v Jim, Jack & Joe Realty Corp., N.Y.L.J., Oct. 19, 2000, page 29, col. 2 (App.Term 1st Dept 2000). See also Hudson House, supra. Where there are substantive infirmities in addition to violations of the Administrative Code, then service will be held invalid. See Borges v Entra Am. Inc., 7 Misc 3d 1032A (Civ Ct, NY County 2005). [*5]There are no such infirmities here. Under RPAPL §735, when service is upon a person of suitable age and discretion, the service must be followed by certified or registered mail and by regular mail. Mr. Gatlin credibly testified that he did so. Mr. Gatlin explained that he does not provide copies of mail receipts to his clients and he does not record the certified mail receipt number in his log book. It is his practice to hold the receipts himself.

The missing certificates of mailing are not required to establish Mr. Gatlin's credibility as their absence is accounted for. Hudson House, LLC v Gabriel, 195 Misc 2d 453 (App Term, 2d Dept 2002). They did not disappear until they were in the hands of either petitioner's counsel or respondent's counsel and after Mr. Gatlin turned them over to counsel.

However, 6 RCNY 2-233 provides:^[FN3]

(7) If service is made pursuant to RPAPL §735(1) in a manner other than by delivery of the notice of petition and petition to the respondent personally, the entry in the process server's record of service or attempted service shall include the postal receipt number of registered or certified mail.

Mr. Gatlin did not write the postal receipt number of the certified mail in his log book. While this too is a violation of the Administrative Code, this is a matter for the Department of [*6]Consumer Affairs to address. The court finds that the best evidence are the receipts themselves, which Mr. Gatlin brought to court.

Accordingly, it is

ORDERED that the motion to vacate the default is denied.

Dated: ________________________________________________________

Andrea Masley, Civil Court Judge