DECISION & ORDER In this probate proceeding, Welton Vample (the petitioner) filed a petition on February 23, 2018 seeking to probate a written instrument, dated March 11, 2013, which purports to be the last will and testament of Cynthia Harris (the decedent). A citation was issued that was returnable on April 3, 2018. A supplemental citation was issued that was returnable on April 17, 2018. On April 10, 2018, the petitioner filed an affidavit of service of the supplemental citation on David Hardison (the movant), the decedent’s son. The movant did not appear in court on the return date. A decision and decree granting letters of administration c.t.a. to the petitioner were issued by the court on April 18, 2018. On May 23, 2018, the movant filed an order to show cause seeking to vacate the decision and decree dated April 18, 2018, asserting that the court did not have proper jurisdiction over him and should not have issued letters to the petitioner. The petitioner opposes the motion. In a decision dated September 19, 2018, the Court set the motion down for a Traverse hearing.On November 1, 2018, a Traverse hearing was held before a court attorney-referee. All parties waived the filing of the referee’s report and stipulated to the Court’s determination of all service of process issues upon the transcript of the hearing testimony and the documents in evidence, pursuant to SCPA 506(6)(c).FINDINGS OF FACTAt the hearing, oral testimony was given by Steeve Louis (the process server), and the movant. The court finds both witnesses credible and credits their testimony. Documentary records relating to the service of process were received into evidence on November 1, 2018, as Petitioner’s Exhibits 1-5 and Movant’s Exhibits A-D, which included the process server’s logs and license, as well as a citation and various affidavits. The parties have acknowledged the authenticity of the foregoing documents, stipulated to the credentials of the process server, and that the process server appeared at 1440 39th St., Brooklyn, NY 11218 on April 3, 2018 at 3:47 p.m. The issue was narrowed to determining what transpired at the time service of process was allegedly effectuated, to wit: whether the movant was served with the original citation or with the supplemental citation.The evidence adduced at the hearing is as follows:Steeve Louis is a licensed process server who was retained by Reliant Court Services to serve process. He has been serving process for over twenty years and serves between thirty to forty people each week. He maintains a log book detailing each service of process and makes daily notations. Page thirty-four of the process server’s log book contains an entry indicating that “David Hardison” was served on April 3, 2018 at 3:47 p.m. in the “Est. of Cynthia Harris” with “PCLWT”. (Exhibit 1). The log book and GPS records confirm that service took place at the movant’s place of business located at “1440 39th Brooklyn 11218.”The process server executed two different affidavits of service for the same service of process on April 3, 2018 at 3:47 p.m. The first affidavit of service is dated April 4, 2018, and asserts that on April 3, 2018 at 3:47 p.m., a “probate citation (dated 3/8/18 and returnable 4/3/18) and copy of last will and testament of Cynthia D Harris (dated March 11, 2013)” was served on the movant at “Executive Transportation Group, 1440 39th St., Brooklyn, NY 11218″. (Exhibit D). The second affidavit of service is dated April 10, 2018, and asserts that on April 3, 2018 at 3:47 p.m., a “supplemental probate citation (dated 3/20/18 and returnable 4/17/18) and copy of last will and testament of Cynthia D Harris (dated March 11, 2013)” was served on the movant. (Exhibit 1). The movant introduced into evidence the document that he avers was served upon him, which is a citation dated March 8, 2018 and returnable April 3, 2018. (Exhibit A).The process server offered no testimony regarding the specific document that he served on the movant, a description of the movant, or any details about the service of process that he performed on the movant on April 3, 2018 at 3:47 p.m. Instead, the proffered testimony detailed the process server’s general routine when serving documents. He offered virtually no testimony from his own recollection, and instead attempted simply to read from his log book. The process server relied almost entirely upon the notations in his log book as proof of service of the supplemental citation on April 3, 2018 at 3:47 p.m. However, the process server was unable to explain the meaning of his own log book notation “PCLWT”. He testified that the “LWT” was short for “last will and testament” but was unable to recall with the exact meaning of “PC.” The process server surmised that “PC” could mean either “personal citation,” “citation,” or “supplemental citation.” The process server also conceded that the two affidavits of service for April 3, 2018 at 3:47 p.m. were conflicting in that they specifically indicate that he performed service of two different documents at the same date, time and place. He did not have a specific recollection of executing the affidavits in this case; he stated that it was his belief that the April 10, 2018 affidavit must have been an amendment to the April 4, 2018 affidavit.During cross-examination, the following testimony was elicited occurred:Q: Do you have any actual recollection of the service on Mr. Hardison in this case or are you really relying on your log book?A: I have some recollection. I can’t say I’m — I serve a lot of things.Q: I understand. I’m just asking a question. Do you, as you sit here today, have a specific recollection of exactly what documents you handed Mr. Hardison that day?A: Whatever I had to serve is what I gave him. I’m not that invested, you know what I mean? It’s not my —THE COURT: The question, however, sir, is do you recall what documents you served him that day?THE WITNESS: Whatever I had to serve. I can’t say —THE COURT: I’m not asking whether you served documents or not. I’m asking if you recall the documents that you served, yes or no?THE WITNESS: YesTHE COURT: What document did you serve?THE WITNESS: The citation.Q: A citation and a will? Do you recall serving a will?A: Right.The movant testified on his own behalf that he was called to the front office while at work on April 3, 2018 at approximately 3:45 p.m. When he arrived at the front office, the process server handed him a citation to appear in court on April 3, 2018 at 9:30 a.m. (Exhibit A). The movant testified that he was never served with a supplemental citation. The movant’s testimony on cross-examination was unwavering and consistent with his direct testimony.CONCLUSIONS OF LAWAt a Traverse, the petitioner bears the burden of establishing jurisdiction over the movant by a preponderance of the evidence. (Skyline Agency, Inc. v. Ambrose Coppotelli, Inc., 117 AD2d 135 [2d Dep't. 1986]). Here, the process server, neither testified to the specific document that was served on the movant, nor did he have a clear recollection of the service of process from April 3, 2018 at 3:47 p.m. The petitioner relied upon the notations in the log book maintained by the process server to establish proof of service of the supplemental citation. However, the testimony of the process server, coupled with his log book, fails to establish service of the supplemental citation on the movant by a preponderance of the evidence. (id.). The plaintiff has failed to make a prima facie showing that the court obtained jurisdiction over the movant.Accordingly, the motion to vacate the decision and decree dated April 18, 2018 is granted; and it is furtherORDERED that the decision issued by the Court on April 18, 2018, and the decree issued on April 18, 2018, granting letters testamentary to the petitioner, is vacated, and the proceeding is restored to the calendar for further proceedings on April 23, 2019.Proceed accordingly.Dated: March 7, 2019Brooklyn, New York
