Mathew v Valentin
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Mathew v Valentin 2019 NY Slip Op 34131(U) December 24, 2019 Civil Court of the City of New York, Queens County Docket Number: 69994/18 Judge: Julie Poley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF QUEENS: HOUSIN G PART D ------------------------------------------------------------x BIPIN MATHEW, Petitioner, L&T 69994/ 18 Decision and Order -againstJOSE VALENTIN, HILDA COLL-VALENTIN, JOHN AND JANE DOE, Respondents. ------------------------------------------------------------x Recitation, as required by CPLR 2219(a) Notice of Motion and Affidavits Annexed .......................................... 0 Order to Show Cause and Affidavits Annexed .................................... I Answering Affidavits ........................................................... .....,,............2 Replying Affidavits ...........................~.................. O ~~~~~~~~=::::::::::::::::::::::::::::::::::::::::::::::::::::~ Other.............. ............................ .... ............................ ..... ...................... O POLEY, J. In this owner's use holdover proceeding both parties are represented by counsel and have engaged in motion practice. By Decision /Order, dated June 25, 20 19, this Court denied Petitioner's motion to strike Respondents' personal jurisdiction defense for improper service of the predicate notice and the Notice of Petition and Petition. The traverse hearing was scheduled for October 23, 2019. Prior to start of the hearing, Respondents waived their personal jurisdiction defense as to service of the predicate notice and the Court held a traverse hearing solely on service of the Notice of Petition and Petition. The hearing commenced on October 23, 20 19 and concluded on December 5, 2019. Petitioner called process server Keith Wohl to testify first. On direct examination, Mr. Wohl produced a copy of his current license, relevant pages of his Jog book, numerous 1 [* 2] photographs of his GPS location at the time of service, a printout of the GPS coordinates at the time of service, and original certified mailing receipts for the Notice of Petition and Petition. (P. Ex. A, B 1-4 and C-G). All of the documents were admitted into evidence. Mr. Wohl credibly testified that on September 11, 2019, at approximately 8:00 pm, he arrived at the subject location and gained admittance into the building by pushing the lobby door open. He proceeding to go the subject apartment, knocked on the door, waited a few minutes, and when no one answered he left. He described the building as a red brick three story attached building. The subject apartment was located on the first floor on the right, with the first floo r containing two -- apartments. He described the door as having a nontransparent glass windo\\'._On to.JL__He credibly_ gaining access into the building he proceeded to the subject apartment. He again knocked on the door, and when he did not receive an answer, he proceeded to place four (4) copies of the Notice of Petition and Petition under the apartment door by sliding them inside the apartment. After he slid the documents under the door, he made a notation in his log book, took photographs, and uploaded his location and time of service to his GPS records. Mr. Wohl testified that after he returned to his office, he supervised his staff in making the address labels and placing the documents in the envelopes, and that he personally went to the post office and mailed copies of the Petition and the Notice of Petition to all Respondents via regular and certified mail. On cross-examination, Mr. Wohl testified that the documents do not appear in photographs of the subject door because he slid the documents under the door inside the apartment. When effectuating conspicuous service, it is his preferred method to first attempt to slide the documents under the door. If he is unable to do so, only then does he tape documents to the door. He credibly testified that he prefers the first method of service when possible because 2 -- [* 3] he believes that sliding documents under the door provides a higher likelihood that the recipients will receive service. Mr. Wohl elaborated that sliding documents under the door eliminates the possibility that someone removes the documents from the door. He then credibly testified that the opening at the bottom of the subject door was large enough for him to completely slide the documents into the apartment one by one. He testified that he never jams the documents in the door as such method of service is not permitted by the regulations promulgated by the Department of Consumer Affairs. Petitioner did not call any other witness. Next, Respondent Hilda Coll-Valen tin testified. Mrs. Coll-Valentin testified that she has resided at the premises for approximately seven or eight years with her husband and their ------- - teenage daughter. Mrs. Coll-Valentin testified that she did not receive the Notice of Petition and Petition under her door or in the mail. Sometime last year, and prior to the start of this proceeding, Mrs. Coll-Valentin testified that they changed flooring in the apartment and added a weather strip to the bottom of the door to keep the wind from entering the apartment. Mrs. CollValentin testified that the only documents she received that were slid under the door was her rent bill, which consists of two pages. She does not believe that the opening at the bottom of the door is large enough to allow a seven-page document to slide under the door, and testified that she went home and attempted to slide seven pages of regular size paper under the door but was unable to do so as the papers crunched and did not go through. On cross-examination, Mrs. Coll-Valentin testified that she works full time and on a typical day leaves the house around 6:30 a.m. and that she does not return until around 6:30 p.m. in the evening. Mrs. Coll-Valentin testified that either she, her daughter or her husband picks-up the mail when they get home and that she did not find the Notice of Petition and Petition under her apartment door and did not receive them in the mail. Mrs. Coll-Valentin further testified that 3 [* 4] she did not hear anyone knocking on the door at 8 p.m. on September I I, 2019, that her teenage daughter leaves the house around 7:15 a.m. and returns around 2:30 p.m., and that her husband leaves the house around 6:30 a.m. and returns around 6:00 p.m. in the evening. Next, Mr. Jose Valentin testified. Mr. Valentin testified that he has resided at the premises for approximately eight years with his wife and daughter. Mr. Valentin testified that he leaves for work around 6:30 a.m. and returns around 6:30 p.m. in the evening. Mr. Valentin testified that at some point after the new owner acquired the building, they had a conversation where Mr. Valentin expressed interest in changing kitchen cabinets in his apartment and the new owner told him to wait. Right after that conversation, he received some notices about vacating. The remaining portion of Mr. Valentin 's testimony was disoriented, and his recollection of specifics was not entirely reliable. He testified that one evening at approximately I 0:00 p.m. his daughter told him that someont_is trying to wedge some papers inside the apartment, and that he -------- went to the front door and removed the wedged-documents from the side of his door. Mr. ~ ---- ----- Valentin was unable to recall the year, the month or the season in wruc-hany of this occurred. He also admitted that due to his limited knowledge of the English language, he could not say whether any of the documents allegedly wedged in the door pertained to service of the Notice of Petition and Petition. He testified that he gave the documents to his wife to read, but he was unable to confirm with any specificity whether the documents were in fact the Notice of Petition and Petition pertaining to the subject cause of action. "Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and therefore, gives rise to a presumption of proper service." (Wells Fargo Bank NA. v. Chaplin, 65 A.D.3d 588, 589 [2"d Dep't. 2009); see also, Bankers Trust Co. of Cal. v. Tsoukasa, 303 A.D.2d 343, 344 [2"d Dep't. 2003)). " However, when a [party] submits a 4 [* 5] sworn denial ofreceipt containing specific facts to refute the statements in the affidavit of the process server, the prima fac ie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of evidence at a hearing." (US. Bank, N.A. v. Peralta, 142 A.D.3d 988, 989 [2"d Dep't. 2016]; see also, Citibank NA. v. Balsamo, 144 A.D.3d 964 (2"d Dep't. 2016]). Thus, the burden rests with Petitioner to prove, by preponderance of the evidence, that it caused the Petition and Notice of Petition to be served upon Respondent in accordance with RPAPL § 735. RP APL § 735 provides that service of the Notice of Petition and Petition shall be made by personal delivery or delivery to a person of suitable age or discretion residing or employed at the property sought to be recovered. The statute further provides that "if upo_n reasena_Qk_ application ... admittance ~btahlCl::hrr~ervice can be effectuated "by affixing a copy of the notice and petition upon a conspicuous part of the property sought to be recovered or by placing a copy under the entrance door of such premises ... " and by mailing the Petition to Respondents by registered or certified mail and by regular first class mail within one day thereafter. Because conspicuous place delivery is the least desirable of the three methods, nail and mail service may only be used after reasonable attempts at personal service were unsuccessful. (Naman v. Sylveen Realty Co., 222 A.D. 2d 564 [2"d Dep't 1995] citing, Palumbo v. Estate of John Clark, 94 Misc 2d I [Civ Ct, Bronx County 1978]). The reasonable application standard for RPAPL § 735 generally requires that there be at least two attempts at service prior to resorting to "nail and mail" service, with one attempt during regular business hours and one attempt outside business hours. (Eight Associates v. Hynes, I 02 AD2d 746 [1 51 Dep't 1984]). s - [* 6] There is no dispute that Respondents are natural persons who resides at the premises sought to be recovered. Respondents did not allege that the process server's photographs depicted an incorrect location, nor did Respondents credibly testify that anyone of suitable age or discretion was home on either of the two dates and times during which the process server attempted to effectuate personal service. The Court credits the process server's testimony that he slid the Notice of Petition and Petition under Respondents' door. Based on the process server's credible testimony, stamped mailing receipts, GPS coordinates, log book and affidavits of service of the process server, the Court f!nds that Pctirioner demonstrated by a preponderance of the evidence that RPAPL §735 has been complied with. ----- The statutory mandate is not that Resp~~eceiVetfle Petiti;;-n, instead, constitutional -------- due proces:ncquires -rfiaftne service be reasonably calculated to appraise the party of pending litigation. (See, Dobkin v. Chapman, 21NY2d 490 (1968]; see also, City of New York v. Chemical Bank, 122 Misc.2d 104 [Sup Ct, New York County 1983]). Under the circumstances of this case, the Court finds that Petitioner proved by a preponderance of the evidence that the Notice of Petition and Petition were served on Respondents in accordance with RP APL§ 735. Accordingly, the Court overrules traverse. The proceeding is marked off-calendar to complete discovery as previously ordered by this Court. The parties may seek to restore this proceeding by stipulation or motion on notice after completion of discovery. In the event the proceeding is not restored by December 31, 2020, the proceeding is deemed dismissed. This constitutes the Decision/Order of the Court. Dated: December 23, 2019 Queens, New York Civil Court Of the -, I f l " 6 Cfty of rfaw York DEC 2 4 2019 ENTERED QUEENS COUNTY .1 ; ' -. ..' H H~n. Jutie Po\eV [* 7] Copies to: Attorney for Petitioner Goldberg, Lustig & Steckler, PLLC 188 Montague Street, Suite 500 Brooklyn, NY 11201 Attn: Hal Rose, Esq. Attorney for Respondents Goldberg & Lindenberg, P.C. 6 East 45th Street, l41h Floor New York, NY 10017 Attn: Mark Lindenberg, Esq. 7
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