2 Grace Owners Inc. v Bodkin
Annotate this CaseDecided on December 9, 2013
Civil Court of the City of New York, Kings County
2 Grace Owners Inc., Petitioner,
against
Frances Bodkin et al., Respondents.
68490/13
Petitioner's counsel
Mitofsky Shapiro et al.
152 Madison Avenue, 3rd Floor
New York, NY 10016
(212) 736-0500
Respondents pro se
Francis Bodkin et al.
2 Grace Court, Apt. 1A
Brooklyn, NY 11201
(No known phone number)
Gary F. Marton, J.
The above-captioned is a holdover proceeding predicated upon an allegation of chronic nonpayment of rent. After considering the testimony and the other evidence at the traverse herein, the court overrules the same and restores the proceeding to its calendar for trial on December 19, 2013 at 9:30 am.
The court took testimony from two licensed process servers, both employed by the same process serving agency. One was Assmat Abdelrahman. He averred that on April 30, 2013 at about 3:30 or 3:45 pm he went to the building in which the premises is located, identified himself to the doorman/lobby attendant, walked through the lobby to the premises, which is on the first floor, and knocked on the door. He stated that someone opened the door to a width of 6 or 7 inches, that he handed this person 4 sets of petitions and notices of petition, that he asked the person whether he was "Bodkin," and that the person answered, "No." Abdelrahman also testified that the person on whom he had made service was the person then in the courtroom who had been identified as Bodkin.
During Abdelrahman's testimony the court received into evidence his GPS photo of the building, which bore a date stamp of April 30, 2013 and a time-stamp of 15:35 (i.e., 3:35 pm), and the pertinent pages of his log book, which showed a period of 17 minutes between the service immediately preceding the service at the premises and the service at the premises.
The other process server was Wendy Resnick. She testified about the mailing that she made on May 1, 2013, and the court took into evidence United Sates Postal Service receipts documenting the same. Bodkin did not contest the particulars of the mailings and the court finds that Resnick's testimony was credible. The court finds that the mailings were made as required by law.
Bodkin, during both his own direct testimony and his cross-examination of Abdelrahman, contested the particulars of the service that Abdelrahman claimed to have made. Bodkin testified that although he could not remember where he was on April 30, 2013, he is at the premises just about all of the time, that he lives there with his wife, that he is the only male at the premises, and therefore that it was not possible for Abdelrahman to have made the service that he averred he had made. During petitioner's cross-examination of Bodkin, when he was asked whether it was possible that on April 30, 2013 someone else was at the premises, Bodkin answered "No."
Abdelrahman's affidavit of service describes six aspects of the appearance of the person on whom Abdelrahman averred that he had made service, and Bodkin took issue with two of them. The description is of a "Male" with "White" skin, aged "65+", "Over 6 ft tall," with "Black/Gr" hair, and weighing "161-200 lbs." Bodkin testified that on April 30, 2013, although he is a white male taller than 6 feet and over the age of 65, he weighed, as he has for many years, at least 265 lbs, and that his head was, as it has been for many years, shaved. The court finds that this portion of Bodkin's testimony was credible, but the court notes that Bodkin's eyebrows, which some might describe as bushy, have a salt and pepper coloration, as did the almost stubble-length hair visible in places on lower portions of his shaved head.
Abdelrahman's less than fully accurate description of Bodkin gives the court some pause. However, the issue here is not whether Abdelrahman's description of Bodkin was accurate in all six respects; instead, it is whether Abdelrahman served process as he testified. It is well-known that witnesses are fallible and that their descriptions of persons that they have actually seen are often inaccurate as to some details, even important ones. It is also well-established that this sort of inaccuracy increases when identifications are cross-racial [FN1] ; the court notes that Bodkin appears to be Caucasian while Abdelrahman appears to have a racial ancestry in the Indian subcontinent.
Abdelrahman's testimony was consistent internally. His GPS photograph was probative of his being at the building on April 30, 2013 at 3:35 pm , and his log book was probative of his having had sufficient time to get to the premises from the place at which he had made an immediately preceding service. In addition, the court finds it wholly plausible that Abdelrahman, with the door to the premises being opened only by 6 or 7 inches for a brief encounter, might have easily come away with the impression that the person whom he glimpsed and to whom he handed the papers was a white man, older than middle-aged, tall, perhaps heavy set, and possibly with some hair that must have been the same color as his eyebrows.
The court finds that Abdelrahman's testimony was credible, that it is more likely than not that he served the papers as he testified that he did, and that service of process was made as required by law. Accordingly, the court overrules the traverse and grants the other relief set out above.
The court will mail copies of this decision and order to the parties.
Dated:Brooklyn, NY
December 9, 2013
_________________________________
Gary F. Marton Footnotes
Footnote 1:Bodkin appears to be Caucasian while Abdelrahman appears to have an ancestry originating on the Indian subcontinent. See, e.g., the discussion in Perry v New Hampshire, 565 US — , 132 S. Ct. 716 (2012), and State of New Jersey v Henderson, 208 NJ 208, 305 (Sup Ct. Of New Jersey, 2011). See also, www.innocence project.org/understand the causes/eyewitness misidentification.
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