Boyle Auto Wreckers, Inc. v Ali

[*1] Boyle Auto Wreckers, Inc. v Ali 2005 NY Slip Op 51352(U) Decided on July 7, 2005 Civil Court Of The City Of New York, Bronx County González, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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, 2005
Civil Court of the City of New York, Bronx County

Boyle Auto Wreckers, Inc., Petitioner,

against

Mohamed Y. Ali and Empire Public Parking, Inc., Respondents.



900904/05



For PetitionerCohen & Stark LLP by Brian Stark, Esq.

For RespondentsRogers, Wughalter & Kaufman by Roger Corredine, Esq.

Lizbeth González, J.

A traverse hearing was held on 7/05/05 to determine whether the rent demand in the underlying commercial nonpayment proceeding was properly served upon the respondents. Service of fair debt collection notices pursuant to 15 USC §1692 is uncontested.

Jeannette Arroyo, a licensed process server, testified that she attempted to serve a rent demand upon the respondents at two different addresses on 5/05/05. The subject premises is located at 1346 Blondell Avenue and a portion of Cooper Avenue. The process server approached a person inside the pay booth at a parking lot located at 1346 Blondell Avenue and Cooper Avenue in Bronx County, at 4:36 p.m. He identified himself as "Zaid" but refused to give his last name. After being told by Zaid that neither respondent Mohamed Y. Ali nor the manager were present, Ms. Arroyo departed. She returned on 5/06/05, the next day, at 10:38 a.m. and again spoke with Zaid. After being informed a second time by the attendant that neither Mr. Ali nor the manager were present, the process server handed five copies of a 10 day rent demand and a fair debt collection notice to "Zaid Doe." She thereafter posted the notices and mailed them by regular and certified mail.

Under cross-examination, the process server admitted without explanation that she was [*2]present at three locations at the same time on 5/06/05. Neither her log book nor the certified mail receipts were placed in evidence.

Two affidavits of service dated 5/06/05 were prepared by the process server. The first, an affidavit of conspicuous service, states that Ms. Arroyo was unable to serve the respondents by personal delivery because she found no one of suitable age or discretion on either 5/05/05 or 5/06/05 who was willing to receive the notices at 1346 Blondell Avenue and a portion of Cooper Avenue. The second, an affidavit of substitute service, directly contradicts the first affidavit to the extent that it describes "Zaid Doe" as a person of suitable age and discretion who was served with papers for the respondents on 5/06/06. The discrepancy was not explained.

Ahjad Ali testified that he has served as the vice-president of respondent Empire Public Parking, Inc. since the company's formation three years ago. Respondent Mohammed Y. Ali is the company's president. Mr. Ali knows no person or employee who spells his first name as "Zaid." Two employees, however, work at the lot and one is named Syed Buzary. Mr. Ali described Syed Buzary as a male with light brown skin between the ages of 65-70 with black and grey hair who is approximately 5' 2" tall. The process server described Zaid as a male with light brown skin and black and grey hair between the ages of 34-50 who weighs approximately 130-160 pounds and measures approximately 5' 8" in height.

DISCUSSION

Under the doctrine of idem sonans, strict accuracy in spelling names is not required in legal documents or proceedings. All that is required is that the name as spelled, although different from the correct spelling, conveys a sound practically identical with the sound of the correct name when pronounced. (Sporza v German Sav Bank, 119 AD 172 [1st Dept 1907], affd 192 NY 8 [1908]). Throughout the course of their testimony, both witnesses pronounced Syed and "Zaid" in exactly the same way. The Court finds that "Zaid" and "Syed" are phonetic equivalents for the purpose of this hearing and determines that "Zaid Doe" and Syed Buzary, the respondent's employee, are one and the same person. (See FDIC v Evangelista, 226 AD2d 208 [1st Dept 1996].)

A special proceeding to recover possession of real property for nonpayment of rent may be maintained in the New York City Civil Court after service of a rent demand upon the tenant is made pursuant to RPAPL 735. (CCA 204; RPAPL 701, 711[2].) RPAPL 735(1) states in pertinent part: 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 [*3]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.

Service of process is sacrosanct to our system of justice and must be treated with great care. (Greater NY Insurance Co v Barfield, NYLJ, July 20, 1994, at 26, col 4, Heitler, J.) For this reason, a person who serves five or more process in any one year must be licensed. (Administrative Code of the City of New York §20-404.) Licensed process servers must maintain a logbook with legible records of all service (General Business Law §89-cc) and comply with all legal requirements for the service of process. (General Business Law §89-ee.) Whenever the Court schedules a traverse hearing to determine whether process was timely and validly served upon a party, its inquiry as to whether a person is of suitable age and discretion is essentially two-pronged since, in the first instance, it is the process server who evaluates whether a person at a subject location can be served with process.

At the traverse hearing, the Court must examine both the process server's credibility and judgment in searching for indicia that the person served with process had a relationship with the person to be served sufficient to make it more likely than not that he or she would deliver process to the named party. (50 Court Street Asso v Mendelson and Mendelson, 151 Misc 2d 87 [Civ Ct, Kings County 1991, Rivera, Richard, J.]) Whether the recipient qualifies to be deemed a person of suitable age and discretion is a fact-specific inquiry. (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 308:3[c].) This usually includes hearing the testimony of the process server and other possible witnesses, reviewing the affidavit of service and logbook, and considering the testimony and evidence offered in opposition. (FDIC v Evangelista, 226 AD2d 208 [1st Dept 1996].)

Here, the process server's affidavit of conspicuous service states that she met no one of suitable age and discretion at the subject location who could be served with process on 5/05/05 and 5/06/05. Her testimony establishes, however, that she spoke with Zaid a/k/a Syed Buzary at the relevant times on both days. No testimony was proffered to explain how Mr. Buzary was suddenly transformed from a person who lacked suitable age and discretion for the purpose of conspicuous service on 5/05/05 and 5/06/05 into a person of suitable age and discretion for the purpose of substitute service on 5/06/05. The process server did not address, for example, how possible reasons for disqualification such as language skills or mental impairment were resolved upon further inquiry on the second service attempt. Putting aside the fact that the certified mail receipts were not offered into evidence and other deficiencies, the fact remains that the process server's lack of candor fatally wounds her credibility. The Court cannot deem the recipient of the rent demand to be a person of suitable age and discretion in the absence of testimony concerning the first prong of inquiry, to wit, the process server's initial investigation.

CONCLUSION

The traverse is sustained. The underlying commercial nonpayment proceeding is dismissed. This constitutes the Decision and Order of the Court. [*4]

Date:July 7, 2005

So ordered,

_________________________________

Hon. Lizbeth González, JCC