In this plenary action for unpaid rent, Defendants Marie and Loulou Layens moved pursuant to CPLR 3211(a)(8) to dismiss for lack of personal jurisdiction, alleging defective "nail-and-mail" service by Plaintiff (sequence 002). By order entered October 11, 2018, the Honorable Leticia M. Ramirez granted the motion to the extent of ordering a traverse hearing. After a hearing conducted before the undersigned, at which process server Manual Lanzot and Defendants testified, the Court finds that Defendants have successfully rebutted Plaintiff's allegations of service, and the Complaint is therefore dismissed.

Plaintiff's affidavit of service and Lanzot's hearing testimony allege proper service upon Defendants. CPLR 308 provides, in relevant part, that service upon a natural person may be made by personal delivery to the named individual, delivery to a person of suitable age and discretion and mailing ("deliver-and-mail"), or, as relevant here, conspicuous ("nail-and-mail") service. CPLR 308(4) defines conspicuous service as

where [personal delivery or deliver-and-mail service] cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such [*2]affixing or mailing, whichever is effected later;

The record, however, evidences Plaintiff's failure to comply with CPLR 308(4). As of the hearing date, Plaintiff's witness Lanzot had been a licensed process server for ten years with a valid license on the dates of alleged service of November 8 and 9, 2017 (Tr 3:11-4:6, Pl Exh 1). Lanzot had no independent recollection of the service attempts alleged in the affidavit of service but, after refreshing his recollection, recalled three attempts at service of the Summons and Complaint upon Defendants at the address listed in the Complaint (the "service address"): November 8, 2017 at 9:05 p.m. and November 9, 2017 at 11:42 a.m. and 4:18 p.m (Tr 6:3-19, Pl Exh 2). Lanzot testified that, upon the third attempt, he affixed the Summons and Complaint to Defendants' door at the service address (Tr 7:1-2, 41:7-12).

However, there are simply too many inconsistencies in Lanzot's testimony and the documents introduced at trial to afford significant weight to either those documents or Lanzot's testimony. For example, prior to refreshing his recollection, Lanzot testified that, after affixing the summons and complaint to Defendant's door at the service address, mailing was made "the next day." This was contradicted, however, by the certified mail receipts and the affidavit of service itself, which both bear mailing dates of November 21, 2017—twelve days after the last attempted service (see Tr 7:6-7, 9:14-19).

Lanzot explained that his office's usual practice, followed in this instance as well, is that other employees prepare the labels and envelopes, into which Lanzot inserts summons and complaints for transportation to the post office (Tr 10:6-10, 16:2-16). Asked on direct, however, when he "subsequently [made] the mailings personally of the summons and complaint to [Defendants]," Lanzot testified that he "usually" prepared mailings on the day of actual mailing and "usually" completed additional mailing on the same date as service; essentially, that service in this instance deviated from his usual practice (Tr 14:3-15:11). The Court therefore credits the testimony of Loulou Layens that the first mailed notice of this action received by Defendants was a court notice, not the Summons and Complaint allegedly mailed by Lanzot (Tr 65:5-66:1, 70:9-13).

Similarly, the logbook—and Lanzot's testimony, based entirely upon the logbook—provided that he attempted service at a brown door with a peephole and bell located in a non-elevator building with a beige hallway with white tiles (Tr 19:19-21:11). This assertion was at least partially contradicted, however, by a photograph depicting Defendants' door at approximately the time of the alleged service (Defs Exh C). In that photo, the top of the stairs and door sill appear white, but the majority of the hallway tiles are, as Loulou Layens credibly testified, dark brown/gray (Tr 69:2-7).

Most significantly, however, the Court cannot credit Lanzot's testimony regarding the sequence of events surrounding the alleged service. Lanzot testified to his "normal" practice: double parking, ringing the bell or waiting for someone to enter/exit (or coming back if this unsuccessful), running to the apartment, ringing the bell and knocking on the apartment door, and waiting one and a half minutes—approximately the time it takes to record the door's attributes—for someone to answer (Tr 35:23-38:20).

However, cross-examination and confrontation with other logbook entries revealed flaws in Lanzot's version of events. That is, the logbook and GPS records, as presented, would have required him to complete service on a different individual at 9:00 p.m. at 1205 Findlay Avenue, Apartment 34B, exit the building (a walkup), enter his double-parked car, drive several blocks to Defendants' address on Grant Avenue, double-park his car, gain entry to the building (another walkup), identify the location of the apartment, ascend the stairs, wait over one and a half minutes (Lanzot's stated practice), make a logbook entry at 9:05 p.m., descend the stairs and exit Defendants' building, re-enter his car, then drive several more blocks and begin the process anew to effectuate service on another individual six minutes later at 9:11 p.m. at 1150 Grand Concourse (Tr 43:25-45:21, Pl Exhs 4, 5). That is dubious, and contradicted by Defendants' credible and specific testimony that, given their complementary work schedules, one of them [*3]would have been home at the alleged times of service and heard their doorbell, which was loud enough to be heard in other apartments (see Tr 66, et seq.).

Additionally, Lanzot testified that an app on his cell phone recorded his GPS coordinates into system entries which he cannot manipulate (Tr 23, et seq.; Pl Exh 5). Lanzot could not explain in any detail how the app functioned; however, and notably, the GPS log does not contain any actual GPS coordinates or photographs; rather, it bears only addresses, including apartment numbers (see NYC Administrative Code § 20-410). Indeed, Lanzot did not explain how the GPS app on his phone would be able to identify a location down to an individual apartment. Moreover, Lanzot testified that his supervisor would inform him "if something is wrong," suggesting, as defense counsel noted during the hearing, that inconsistencies between Lanzot's app and the digital records do occur (Tr 33:7-33-22).

Finally, to the extent that Lanzot's testimony is based almost entirely on the logbook and not independent recollection, the markings in Lanzot's logbook are implausible and/or inconsistent with his articulated procedure, thereby undermining his testimony. For example, Lanzot's logbook bears a circled "C" for "conspicuous place service" on November 8, 2017, which Lanzot testified to mean simply that nobody answered the door (Tr 39:14-21). Lanzot does not explain, however, why a circled "C" on a different notation pertaining to the service address demonstrated that he actually affixed the Summons on that date (see Tr 40:1-2). Indeed, on at least one other occasion however, Lanzot recorded the details of a service location without circling any type of service (Defs Exh B). Based on this inconsistency and those noted above, it is hereby

ORDERED that the Complaint is dismissed; and it is further

ORDERED that Defendants shall, within 10 days of receipt, serve a copy of this order with notice of entry upon Plaintiff and the New York City Department of Consumer Affairs, to the attention of the Process Server division/department.

This constitutes the decision and order of the Court.