Harbor Tech LLC v. Correa
| Decision Date | 14 October 2020 |
| Docket Number | 60788/2019 |
| Parties | HARBOR TECH LLC, Petitioner, v. Alfredo CORREA, Respondent. Harbor Tech LLC, Petitioner, v. Benjamin Soto, Respondents. Harbor Tech LLC, Petitioner, v. Benjamin Soto, Respondents. |
| Court | New York Civil Court |
For Petitioner: Jeffrey Goldman
For Respondent: Jack Lester and Anselmo Alegria
Jack Stoller, J. Harbor Tech LLC, the petitioner in these two proceedings ("Petitioner"), commenced these two summary proceedings against Alfredo Correa, the respondent in one of these proceedings ("Respondent Correa"), seeking a money judgment and possession of apartment 206 ("Respondent Correa's apartment") at 14 Verona Street, Brooklyn, New York ("Respondent Correa's building"), and against Benjamin Soto, the respondent in the other one of these proceedings ("Respondent Soto"), seeking a money judgment and possession of apartment 4G ("Respondent Soto's apartment") at 5 Delavan Street, Brooklyn, New York ("Respondent Soto's building"), both on the basis of nonpayment of rent. Respondent Correa and Respondent Soto (collectively, "Respondents") both interposed answers raising defenses regarding the service of both the predicate rent demand notices ("the Demand" as it refers to a respective case or, collectively, "Demands") and the notices of petition and petitions ("the Petition" as it refers to a respective case or, collectively, "the Petitions") in both proceedings. The Court held joint traverse hearings on October 2, 2020.
The traverse hearing
Petitioner introduced a logbook ("the Logbook") of a process server ("the Process Server") into evidence. The Logbook shows that on March 7, 2019, the Process Server made an unsuccessful attempt at service of the Demand at Respondent Soto's apartment at 6:57 p.m., then personally served people in two apartments in the same complex that encompasses Respondent Correa's building and Respondent Soto's building ("the Complex") at 7:00 p.m., then personally served someone in another apartment at the Complex at 7:05 p.m., and then made an unsuccessful attempt at service of the Demand at Respondent Correa's apartment at 7:08 p.m. The Process Server's affidavits of service reflect the attempts at service on Respondents. The Logbook shows that on March 8, 2019, the Process Server served the Demand at Respondent Correa's apartment by conspicuous place service at 12:32 p.m. A photograph of Respondent Correa's door in evidence is time-stamped 12:32:11 p.m. The Logbook shows that the Process Server served the Demand at Respondent Soto's apartment at 12:34 p.m. by substituted service. A photograph of Respondent Soto's door in evidence is time-stamped 12:34:22 p.m. The Process Server's affidavits of service reflect both services and also state that the person served at Respondent Soto's apartment was a white male with gray hair, who was aged 35 to 49 years old, who was five feet four inches to five feet eight inches tall, and who weighed from 160 to 199 pounds. The Process Server's affidavits also allege service of the Demands on Respondents by regular and certified mail at March 8, 2019.
The Logbook shows that on March 25, 2019, the Process Server made an unsuccessful attempt at service at another apartment at the Complex 4:10 p.m., then that the Process Server made an unsuccessful attempt at service of the Petition at Respondent Soto's apartment at 4:12 p.m., then made an unsuccessful attempt at service of the Petition at Respondent Correa's apartment at 4:15 p.m., attempts reflected in the Process Server's affidavits of service. The Logbook also shows that the Process Server served two people in the Complex by personal delivery that day. The Logbook shows that on March 26, 2019, the Process Server personally served someone in another apartment at the Complex at 8:35 p.m. and then served the Petition at Respondent Soto's apartment by conspicuous place service at 8:37 p.m. A photograph of Respondent Soto's door in evidence is time-stamped 8:37:11 p.m. The Logbook states that the Process Server then served the Petition at Respondent Correa's apartment at 8:39 p.m. by conspicuous place service. A photograph of Respondent Correa's door in evidence is time-stamped 8:39:09 p.m. The Process Server's affidavits of service also reflect the latter two entries and allege service of the Petitions on Respondents by regular and certified mail at March 27, 2019.
Respondent Soto testified on Petitioner's case that in 2019, he lived by himself; that he had irregular work hours in March of 2019; that he did not remember where he was on March 7, 2019 or March 8, 2019; that he was out of town on March 25, 2019 and March 26, 2019; that no one was in Respondent Soto's apartment on the latter two dates; that he did not remember if there was a legal notice on the door of Respondent Soto's apartment when he returned, a week later; that the door of Respondent Soto's apartment is black; that there is a peephole and a doorbell in the door; that he might have received legal papers in 2019, although he did not remember for sure; that he weighs 170 pounds; that he is five feet ten inches tall; that his hair is gray; that his skin is brown; that he is 55 years old; that he did not recall being served by a process server with the Demand; that he has been served many times over the past six years, although did not recall when exactly; that he did not remember if he received the Demand or the Petition on his door or in the mail; and that no one lived or worked in Respondent Soto's apartment in March of 2019 who fit the description from the affidavit of service regarding the Demand.
Respondent Correa testified on Petitioner's case that he worked at a restaurant in 2019; that he did not have regular work hours, but he often works in the evenings until two in the morning and then comes home; that he does not remember where he was in March of 2019; that his door is silver; that there is a brown beam which is wood outside his door; that his door says "206" on it; that he never saw the Demand and the Petition attached to his door; and that he did not remember receiving Court papers in the mail.
The Process Server testified that the information on the affidavits of service of the Demands and the Petitions for Respondent Soto's apartment and Respondent Correa's apartment (collectively, "the subject premises") is input from the Process Server's GPS log records; that he does not have a specific memory of the services of the Demands and the Petitions at the subject premises; that he knocks on doors where he is supposed to serve process or rings a doorbell if there is a doorbell; that he waits a minute or a minute-and-a-half after knocking to see if someone would answer the door; that if no one answers he takes a photo of a door; that, if someone opens the door, he asks for the name of the party named in the papers; that he then says that that he has a paper from a landlord for that person; that he asks if the person who answers the door is a resident; that he asks the person who answers the door for their name; that he recognized Respondent Soto, who attended the traverse hearing by videoconference, as the person he served with the Demand; and that he mailed copies of the Demand and the Petition by regular and certified mail by bringing them to a post office after having prepared the mailing labels in advance.
Petitioner introduced into evidence the Process Server's license issued by the Department of Consumer Affairs; the certified mail receipts for the mailings of the Demands and the Petitions on the subject premises; and photographs of the doors of the subject premises that he took on March 8, 2019 and March 26, 2019, which Respondents also both authenticated on their own testimony on Petitioner's case. The photograph of the door of Respondent Correa's apartment on March 8, 2019 shows the Demand affixed thereof. The photograph of the door of Respondent Correa's apartment on March 26, 2019 shows the Demand in the same place as it was on March 8, 2019 as well as the Petition affixed thereof on a different part of the door.
The Process Server testified on cross-examination that he had been to the subject premises before March 8, 2019, and many times in 2019, although he did not remember how many times; that he thinks the subject premises are located in two buildings that are attached to one another; that he travels for process serving by car; that he has had an easy time finding parking near the Complex; the Respondent Soto's apartment is on the fourth floor; that he does not believe that the Complex has an elevator, and so he would have to walk up four flights of stairs to get there; that the way from Respondent Soto's apartment to Respondent Correa's apartment is to walk to the right of Respondent Soto's door if he is facing the door, to then make a right, to then go down a hallway, to then walk on two flights of stairs, which he believes included a landing; to then go through a door on the right side, and to then go down a hallway; that he walks at a brisk pace when he's working; that travel between Respondent Soto's apartment and Respondent Correa's apartment takes thirty seconds but that he does not recall the exact number of seconds; that the Logbook shows that he served six apartments in the Complex within eleven minutes on the same day because service was quicker on other people, as he served them by personal delivery; that getting from one floor to another takes about fifteen seconds; that Respondent Soto's apartment is in the middle of a hallway between two flights of stairs; that his practice is to affix notices with scotch tape; and that he then takes out a phone and enters information such as a description of a door.
Respondent Soto testified on Respondent's case that he has lived in Respondent Soto's apartment for nineteen years; that at least three buildings comprise the Complex, connected by various hallways and doorways; that, in March of 2019, the...
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1027 Wallco, LLC v. Shoop
...Trust v Rabinowitz, 7 A.D.3d 459, 460 [1st Dept. 2004]). If petitioner cannot sustain its burden at the hearing, (see Harbor Tech, LLC v Correa, 69 Misc.3d 969, 976 [Civ Kings County 2020 [it is petitioner's burden to establish proper service by a preponderance of the evidence]), the case w......