[*1]
Bruckner by the Bridge, LLC v Gonzales
2015 NY Slip Op 51039(U)
Decided on July 7, 2015
Civil Court Of The City Of New York, Bronx County
Vargas, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 7, 2015
Civil Court of the City of New York, Bronx County


Bruckner by the Bridge, LLC, Petitioner-Landlord,

against

Nitza Gonzales, Respondent-Tenant.




L & T 074039/2013



Waide Law Offices, PLLC



87-14 116th Street



Richmond Hill, New York 11418



Jessica Reed, Esq.



BOOM! Health Legal Services



540 East Fordham Road



Bronx, New York 10458


Javier E. Vargas, J.

Notice of Petition, Petition, Affidavits of Service & Exhibits................1



Affirmation in Summation......................................................................2



Following a traverse hearing before the undersigned and after reading the exhibits introduced thereat, Petitioner Bruckner by the Bridge, LLC's ("Landlord") Petition is denied, and the Proceeding against Respondent Nitza Gonzales ("Tenant"), is hereby dismissed for lack of personal jurisdiction.



By Notice of Petition and Petition dated December 4, 2013, Landlord commenced the instant nonpayment summary proceeding against Tenant, seeking $2,472 of rent arrears at $497 per month from September 2013 to December 2013, plus reasonable costs and counsel fees, involving Premises located at 105 Willis Avenue, Apartment 6D, in the Bronx, New York. Tenant is a recipient of Section 8 benefits from the New York City Department of Housing Preservation and Development (HPD) and subject to a Lease Agreement and applicable regulations. The Petition further recognizes that the Premises are subject to the Rent Stabilization Law of 1969 and are duly registered with the New York State Department of Housing and Community Renewal (DHCR). Prior thereto, Landlord allegedly served a Rent Demand upon Tenant dated November 12, 2013, advising her that arrears of $1,972 at that time had to be paid within 30 days in pain of the commencement of legal proceedings.



By Answer dated January 15, 2014, Tenant answered the Petition by affirming that she "did not receive the Notice of Petition and Petition," and that "there are or were conditions in the apartment and/or the building/house which Petitioner did not repair and/or services which [it] did not provide." On the appearance date of January 22, 2014, despite her allegations as to the lack of proper service of process, the record does not reveal any examination by the Court as to Tenant's non-service allegations, or as to the circumstances surrounding the purported substitute service at Tenant's residence. Specifically, the Affidavit of Service dated January 7, 2014, affirms that, after two prior attempts at personal service on January 3, 2014 at 7:48 p.m. and January 6, 2014 at 9:51 a.m., the Notice of Petition and Petition were affixed to the Premises door and certified mailed to Tenant by the Process Server, Panagiotis Antiaris.



Nevertheless, on January 22, 2014, the parties appeared in court and entered into a Stipulation of Settlement so-ordered by Housing Court Judge Michael Pinckney, where Tenant agreed to a Final Judgment of Possession against her in the sum of $1,972 with execution of the warrant stayed until March 9, 2014 for payment of the arrears, and Landlord promised to paint and plaster the Premises. It should be noted that Tenant did not consent to the jurisdiction of the Court in the Stipulation, as it is usually done when jurisdictional or service issues are raised in the Answer. Regardless, Tenant defaulted shortly thereafter, and following two Orders to Show Cause to vacate her defaults in March and April 2014, respectively, the execution of the Warrant of Eviction was stayed until April 24, 2014 for Tenant to pay arrears then amounting to $2,469. [*2]Several adjournments ensued during which time Tenant obtained counsel, BOOM! Health Legal Services.



By Notice of Motion dated September 26, 2014, Tenant's counsel moved for a dismissal of the Petition pursuant to CPLR 3211(a)(2) on the grounds that Landlord failed to properly serve upon her both the predicate Rent Demand as mandated by RPAPL 711(2), and the Notice of Petition and Petition as required by CPLR 308, thereby requiring the dismissal of the Proceeding for lack of personal jurisdiction over Tenant. Tenant claimed that she never received the Rent Demand, Notice of Petition or Petition either personally, affixed to her door or by mail, and only learned of the instant Proceeding following receipt of this Court's postcard setting the appearance date. In opposition, Landlord argued that it properly served the Predicate Notice and Petition as evidenced by the Affidavits of Service and that, in any event, Tenant waived her personal jurisdiction defenses by appearing, participating in the Proceeding and signing the so-ordered Stipulations giving her more time to pay the arrears.



By Short Form Order dated December 23, 2014, the Housing Court (Pinckney, J.) disagreed and granted Tenant's motion only to the extent of vacating the "Judgment Stipulation signed on January 22, 2014," permitted Tenant to file an amended Answer, and ordered that, "if personal jurisdiction is properly raised, parties to be ready for traverse/trial on" January 29, 2015. On January 12, 2015, Tenant served a Verified Answer again raising as an affirmative defense the lack of personal jurisdiction. No appeal has apparently been taken from that Order. In the interim, Judge Pinckney was transferred to a different part in favor of the undersigned. In accordance with his prior Order, this Court presided over a traverse hearing on May 26, 2015, where the Process Server and Tenant both testified and submitted into evidence several documents and photographs.



At the traverse, Process Server Antiaris testified that he had been licensed as a process server by the NYC Department of Consumer Affairs since March 5, 2007, and produced his license showing an expiration date of February 28, 2016. He was hired by Landlord to effect service of the Predicate 30-day Rent Demand, Petition and Notice of Petition upon Tenant in this Proceeding. He testified that he serves several processes per month specifically at Tenant's Building, but did not remember how he gained entrance to the Building that day in particular. Referring to his Affidavit of Service of the Rent Demand dated November 22, 2013, the Process Server testified that he gained entry into 105 Willis Avenue on November 20, 2013, and described the Building as containing two buzzers, light blue walls, blue carpet, beige moldings and doors on an L-shape floor. He testified that he proceeded to take pictures of the hallway and door, which were entered into evidence, and attempted to serve process on various tenants in the Building, including at the Premises herein, Apartment 6D, but that Tenant was not at home on both November 20 and 21, 2013 at 6:03 p.m. and 10:31 a.m., respectively. At those times, he testified that he knocked on Tenant's door but received no answer; and on the second attempt, after knocking and waiting, "taped" the Rent Demand on her door. The Process Server also provided his Global Positioning System ("GPS") Records demonstrating that he was at the Premises on those November dates and hours.



Likewise, Process Server Antiaris testified that, in accordance with the Affidavit of Service dated January 7, 2014, he gained entrance to the Building again and attempted to serve the Notice of Petition and Petition upon Tenant by knocking on her door, but received no answer [*3]on January 3, 2014 at 7:48 p.m. and January 6, 2014 at 9:51 a.m. After these two attempts, he testified that he affixed the Notice of Petition and Petition to the Premises' door and certified mailed the process to Tenant's residence the next day. No GPS records were provided for the service of the Notice of Petition and Petition at those times. With that, Landlord's counsel rested its main case. On cross-examination, the Process Server admitted that he serves several Petitions and predicate notices very "quickly" and contemporaneously in the Building every month, and usually awaits for an answer for approximately one and-a-half minutes after knocking at any door in attempting service.



As part of her defense, Tenant's counsel then offered into evidence five separate Affidavits of Substitute Service executed by the Process Server all dated November 22, 2013, involving five different proceedings pending in Bronx County Housing Court, showing attempts of service at the same Building within two to three minutes of each other on different floors on November 20 and 21, 2013. For instance, he attempted service at Tenant's Building on November 20, 2013, upon one Kanae Haynes at Apt. 9J at 5:57 p.m., then upon one Mr. Torres of Apt. 7H at 6:01 p.m., upon Tenant of Apt. 6D at 6:03 p.m., upon Sanogo Massandje of Apt. 6A at 6:05 p.m., upon Latoya Jackson of Apt. 4C at 6:07 p.m., and finally upon Ms. Adrienne Pearl of Apt. 4L at 6:09 p.m.; similar time intervals were recorded for his attempts on November 21, 2013, and none of these tenants were at home either day, according to his Service Affidavits. Further Affidavits of Substitute Service by the Process Server for the related Notices of Petition and Petitions for those same five proceedings between January 3 and 6, 2014, showed a similar pattern by the Process Server of merely spending two minutes between each attempted service on different floors in the morning hours, and again not one of the abovementioned tenants were home after the Process Server allegedly knocked on their doors.



Upon Tenant's further cross-examination, the Process Server acknowledged that he did not record all those attempted services of process in his Logbook on either November 20 or 21, 2013. Indeed, the relevant pages of his Logbook show only two service attempts on November 20, 2013 upon Tenant at 6:03 p.m. and Ms. Pearl at 6:09 p.m., and on the other date with time elapses of between five to six minutes between services. He offered no explanation for his failure to list all of his four other attempts. More importantly, Tenant's counsel discovered and submitted into evidence a NYC Department of Consumer Affairs' Notice of Hearing against Process Server Antiaris dated June 26, 2013, alleging several serious charges against him of "sewer service," filing a false affidavit of service, failure to keep electronic records or "create GPS records for any of the 300 services and attempted services he made during the period February 1, 2013 through March 30, 2013," and failure to maintain logbook entries for several attempts or services in chronological order. Admitted into evidence was a Consent Order dated July 27, 2013, resolving that administrative proceeding, where the Process Server agreed "to resolve these charges" of "Sewer Service" by paying a $3,000 fine, promising to keep contemporaneous electronic and GPS records of his services, and having his license suspended for 30 days following the August 7, 2013 execution of the Order.



Landlord's counsel conducted a re-direct examination of the Process Server, eliciting testimony to the effect that, despite the Consent Order, the Process Server has never admitted guilt of the sewer service charges, has not been sanctioned or received any complaint again since then. He also testified that he is not required to keep records up to the second spent at a each [*4]location. Next to take the stand was Tenant, who denied ever receiving any of the predicate papers purporting to commence this Proceeding, and testified as to her total lack of knowledge of the same other than after receiving the Court's postcard. On cross-examination, Tenant admitted that she was not working in 2013, and that the papers may have fallen or have been taken down by somebody else in the Building. She maintained that her medical conditions prompt her to go to several doctors appointments. Tenant's counsel then rested. At the conclusion of the hearing, the Court afforded counsel the opportunity to submit post-trial memoranda, which only Tenant's counsel submitted on June 8, 2015.



It is axiomatic that proper service of process must be effectuated for the Housing Court to obtain personal jurisdiction over a respondent in a nonpayment/holdover proceeding in accordance with RPAPL 735(1)[FN1] (see New York City Hous. Auth. Butler Houses v Williams, 7 Misc 3d 1028[A], 2005 NY Slip Op 50804[U] [NYC Civ Ct 2005 (Madhavan, J.)]). Ordinarily, a proper affidavit of a process server attesting to personal delivery of a petition to the respondent is sufficient to support a finding of jurisdiction. "Where, however, as here, there is a sworn denial of service by the defendant, the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a [traverse] hearing" (Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139 [1986]; see 77 Commercial Holding, LLC v Central Plastic, Inc., 46 Misc 3d 80, 83 [AT 2014]). In addition to testifying as to the services effectuated, a process server in New York City is required by statute to keep detailed and legible records in his logbooks (see General Business Law § 89—cc), and to bring them to court in support of his/her claim of proper service when appearing for the traverse (see NY City Civ Ct Act [22 NYCRR] § 208.29). Those records must include such information as the title of the case, index number, court, name of the person served, and the date, time and place of service (see General Business Law §§ 89-c, 89—cc). They must also include records from a mobile device that utilizes software that "makes an electronic record of the location where, and the time and date when," process is being served or attempted to be served using GPS "technology or Assisted-Global Positioning System ("A-GPS") technology" (NY City Code [6 RCNY] § 2-233b[a][1][I]).



Applying these legal precepts to the instant matter, Landlord has failed to sufficiently establish personal jurisdiction over Tenant in order to maintain this nonpayment proceeding, and this Court must sustain the traverse challenge by Tenant. Although Landlord initially appeared to [*5]have established proper substitute service of process of the Rent Demand, Notice of Petition and Petition, a closer examination of the full record raises credibility issues and deep concerns about the actions of this Process Server not only as to the instant Proceeding, but others currently pending in this Court. The record establishes that the Process Server had no independent recollection of the facts of his substitute service of the Rent Demand, Petition and Notice of Petition upon Tenant. Instead, his testimony was based entirely upon his recollection being refreshed by his own Logbook and Affidavits of Service executed by him; however, the Logbook was found to be utterly unreliable because it failed to record several services of process allegedly made contemporaneously on the same date and around the times of Tenant's service. And, while Landlord submitted into evidence the Process Server's GPS Records showing his location during the attempted service upon Tenant of the Rent Demand in November 2013, there was no submission into evidence of the GPS Records relevant to the attempted service of the Notice of Petition and Petition upon her in January 2014.



Not only did the Process Server fail to record several services on his Logbook, but this Court finds it hard to believe that he could have effected all those attempts or services of process in a single day on different floors at different apartments within two minutes of each other. The Process Server's lack of any explanation as to his failure to record those other attempts at services, coupled with the 2013 Consent Order and his acknowledged violations just four months prior to Tenant's purported service, utterly undermines his credibility and the trustworthiness of his entire testimony, including his alleged substitute delivery of the Rent Demand, Notice of Petition and Petition. Further eroding this Court's trust on the Process Server's testimony was the way he minimized the misconduct proceedings against him and the Consent Order. He failed to inform the Court of the hefty fine that he was required to pay or the severity of the suspension he endured. On the other hand, Tenant credibly testified that she never received the pleadings either personally, by mail or posted on her door. As the Court has no basis independent of Process Server Antiaris for finding that Landlord properly effected service upon Tenant, the traverse challenge must be sustained.



There is a further independent reason for sustaining the Traverse herein. When utilizing substitute service, as here, the papers may be placed under the entrance door of the Tenant's residence, but may not be wedged between the door knob and the frame of the door, as "this type of service, without the use of tape or other device which will ensure a genuine adherence' is not an affixation' within the meaning of CPLR 308(4)" or RPAPL 735(1) (Steltzer v Eason, 131 AD2d 833, 834 [1987]). Based on the photo submitted into evidence of Tenant's door, the Process Server does not appear to have actually "affixed" or taped the process on her door. To the contrary, it looks to be wedged between the door knob and the frame of the door, which is not considered a "genuine adherence" or "affixation" within the meaning of the service statutes (id.).



In accordance with the foregoing, this Court finds that it lacked personal jurisdiction over Tenant, the Judgment and Warrant having been vacated already, the Proceeding is hereby dismissed as a matter of law (Eight Assoc. v Hynes, 102 AD2d 746, 748 [1st Dept 1984], affd 65 NY2d 739 [1985]). This constitutes the Decision, Judgment and Order of this Court.

E N T E R:



Dated: July 7, 2015

Bronx, New YorkJ.H.C.

Footnotes


Footnote 1:RPAPL 735(1), provides for the manner of service of process and filing in Housing Court, as follows: "Service of the notice of petition and petition shall be made by personally delivering them to the respondent; or 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; or if admittance cannot be obtained and such person found, 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 delivering to such suitable person or such affixing or placement, by mailing to the respondent both by registered or certified mail and by regular first class mail."