Recitation, as required by CPLR 2219(a) of the papers considered in review of this motion by NYSCEF Doc No: 58-64. DECISION AND ORDER BACKGROUND This is a summary holdover proceeding following the completion of a foreclosure action. The proceeding is predicated on a ninety (90) day notice to quit pursuant to RPAPL 1305 and RPAPL 713 (5). There is a long and storied history to the proceeding which was commenced in the spring of 2019. The proceeding was previously scheduled for a traverse hearing to take place on February 7, 2020, but was adjourned for a status conference on March 23, 2020. The subsequent onset of the COVID-19 pandemic led to adjournments of the proceeding in the trial part. In February 2022, the proceeding was returned to the resolution part to be calendared for a traverse hearing. The proceeding was then stayed in March 2022, due to respondent’s filing of an Emergency Rental Assistance Program (“ERAP”) application. (L 2021, c 56, part BB, subpart A, §8, as amended by L 2021, c 417, part A, §4; Admin Order of Chief Admin Judge of Cts AO/34/22.) In August 2022, the court granted petitioner’s motion to vacate the ERAP stay and adjourned the proceeding to November 2022 for a traverse hearing. Respondent thereafter appealed the order vacating the ERAP stay, which the Appellate Term, First Department affirmed in March 2023. The traverse hearing commenced June 21, 2023, and concluded on September 22, 2023. The only issue at the traverse hearing was service of the notice of petition and petition at 175 West 12th Street, Unit 2D, New York, NY 10011 (“175 West 12th Street.”). The affidavit of service of the process server, Michael Mangual (“Mangual”), indicates that the notice of petition and petition were handed to Jimmy Acevedo, the concierge, at the building located at 175 West 12th Street, on May 8, 2019 at 7:47 a.m. Mr. Acevedo is described in the affidavit of service as a white male with black/gray hair, approximately 55 years old, who is approximately 5′ 4″ to 5′ 7″ in height, and between 150-174 pounds in weight. HEARING TESTIMONY AND EVIDENCE Direct Examination of the Process Server Petitioner called Mangual as its sole witness. The court admitted the following documents into evidence: (1) photocopies of Mangual’s process server licenses, which expired February 28, 2020, February 28, 2022, and February 28, 2024; (2) “work tickets” for Mangual to serve the notice of petition and petition at two addresses: 175 West 12th Street, and 140 7th Avenue, Apt. 5P, New York, NY 10011 (“140 7th Avenue”); (3) Mangual’s original bound logbook and photocopies of relevant pages related to attempts of service at 175 West 12th Street and 140 7th Avenue; (4) the affidavit of service of the notice of petition and petition at 175 West 12th Street; (5) a printout from the United States Postal Service, dated July 26, 2019, with tracking indicating that the mailing of the notice of petition was delivered; and (6) an affidavit of “non-service” of the notice of petition and petition at 140 7th Avenue. The following documents were not admitted into evidence due to petitioner’s failure to provide a proper foundation: (1) a printout of information from Independent Server, a third-party software; (2) a printout of Mangual’s logbook from Independent Server; and (3) a series of six photographs of the outside of both buildings where Mangual attempted service on respondent. The court also excluded as academic a certification from Independent Server for the GPS and digital logbooks, as the court had already excluded the printouts from Independent Server. Mangual testified he is a licensed process server and that he currently works as a florist. He testified he was previously employed by Alstate Process Servicing (“Alstate”) in the past as a process server, from 2019 to 2023. Mangual testified he would receive the documents to be served from Alstate, attempt to serve those documents, complete service, keep a record, and complete the affidavits of service. Mangual testified his license was in effect when he served the notice of petition and petition on respondent. Mangual testified he was engaged by Alstate to perform service when Alstate would call him, give him the documents to be served along with a “work ticket,” which states who and where he is charged to effect service. Mangual testified he was engaged to perform service for this proceeding, and that it was his understanding that it was a “foreclosure eviction case.” (NYSCEF Doc No. 67, June 21, 2023 trial transcript (hereinafter “June 21 tr”) at 26, lines 14-15.) Mangual is familiar with how to serve process in a holdover proceeding and has reviewed the Real Property Actions and Proceedings Law with respect to how to serve process. Mangual testified he recognized his handwriting on the work tickets, which are instructions given to him along with the documents to be served, and which give the details necessary to effect service. When asked to “briefly summarize what those work tickets tell you about service” on respondent, Mangual read from the work tickets themselves, which were already admitted into evidence, and testified that the work tickets indicate he attempted service at both addresses on May 6, 2019, May 7, 2019 and May 8, 2019; that “on May 8th, I was refused access to the apartment door [for 175 West 12th Street] and I left the document with Jimmy Acevedo with the concierge”; and that 140 7th Avenue is a brown brick building and 175 West 12th Street is a red brick building. (Id. at 33, line 19, through 35, line 5.) Mangual testified the two addresses were ten minutes apartment by foot. Mangual testified that he created the records of the logbook at or near the time of occurrences in the records, that he was under a business duty to do so accurately, had personal knowledge of the information in the logbook, that the records are done in the ordinary course of business as a process server, and that it is routine for a process server to keep a logbook. Mangual testified he makes each entry into the logbook “usually a half an hour or less” after a service attempt. (Id. at 44, line 18, through 47, line 7.) The notation “NOP” in the logbook column for the type of document served refers to a notice of petition. (Id. at 48, lines 13-14; at 52, lines 11-12.) Mangual was directed to go through entries in the logbook related to attempts of service on respondent “and the information that the logbook contains about those service attempts.” (Id. at 48, lines 22-25.) Mangual proceeded to read from copies of the logbook that were already admitted into evidence, and testified that service was attempted but not performed at 175 West 12th Street on May 6, 2019 at 16:01, and attempted but not performed at 140 7th Avenue on May 6, 2019 at 16:09. (Id at 51, lines 15-25; at 52, lines 9-16.) The logbook indicates service was attempted but not performed at 175 West 12th Street on May 7, 2019 at 18:09, and attempted but not performed at 140 7th Avenue on May 8, 2019 at 18:21. (Id. at 54, lines 1 through 3; at 54, lines 8-14.) The logbook indicates service of the notice of petition was performed at 175 West 12th Street by substitute service on Jimmy Acevedo, described as “Male 55, white skin, black/grey hair, 5 foot 4 to 5 foot 7, 150-175 pounds,” on May 8, 2019 at 7:52. (Id. at 54, line 19, through 55, line 19.) Service of the notice of petition was attempted but not performed at 140 7th Avenue on May 8, 2019 at 7:59. (Id. at 56, lines 4-9.) Mangual testified he recognized the affidavit of service of the notice of petition and petition at 175 West 12th Street includes who he served, where service took place, a description of the person to whom he served the papers, and the mailings of the papers. (Id. at 70, line 18, through 72, line 13.) As for the affidavit of “non-service” at 140 7th Avenue, Mangual testified he signed the affidavit, that the information contained therein was based on his personal knowledge and on information that he provided. Cross-Examination of Process Server On cross-examination, Mangual testified that he currently works at a flower shop where he has worked since February 2023. He has been licensed since 2018. He served all kinds of documents. His first job was at ABC Legal in Brooklyn, where he was an independent contractor and worked for approximately nine months. While at ABC Legal, he was given more than 200 work tickets but could not state what percentage of his attempts at service were “successful,” which further questioning clarified to mean his ability to serve papers in any permissibly way; an example of not being able to serve would be if the house at which he was to serve papers had burned down. He left ABC Legal to work as an independent contractor for Delta Court Service in Queens, which he left in February 2020. Mangual could not testify as to how many times he completed an affidavit of attempted service. He testified he began working for Alstate as an independent contractor at around the end of 2018 or beginning of 2019, and worked there until February 2023. He testified he did not personally serve respondent and would not recognize respondent if he saw him. When questioned if he “ever nail[ed] any papers in this case to any door,” Mangual answered “[n]ot a hammer. Not a nail. I’ve posted.” (NYSCEF Doc No. 66, Sept. 22, 2023 trial transcript (hereinafter “Sept 22 tr”) at 40, lines 16-25.) When asked where he “post[ed],” Mangual answered “[o]n the door.” He testified he remembered doing so; he answered “[y]es” when asked if he “ever mail[ed]” anything, and that he sent the mailing to [t]he address on file.” (Id. at 41, lines 1-8.) Immediately after answering this last question, respondent asked for dismissal on the basis that petitioner had not demonstrated that process was served, that Mangual had no personal recollection, that Mangual was “repeatedly looking at records when answering questions,” had “no personal recollection,” and that without supporting testimony, the affidavit of service only amounts to hearsay. (Id. at 41, line 9, through 42, line 5.) In opposition, petitioner argued records were admitted into evidence to support the prima facie evidence of service provided by the affidavit of service, and that respondent had not diminished Mangual’s credibility. (Id. at 42, lines 6-20.) The court denied respondent’s request at that time. On redirect, Mangual testified that the records he maintains for service and records maintained by Alstate for service are the same. Direct Examination of Todd Courtney Respondent Todd Courtney was called as respondent’s sole witness. The court admitted the following documents into evidence: (1) the predicate ninety (90) day notice to quit; (2) a copy of the notice of petition; (3) a copy of the petition; and (4) respondent’s verified answer. The court did not permit a letter of rejection of the predicate notice to be admitted into evidence. Respondent testified he has lived at 175 West 12th Street for approximately six years and lives there with his wife, Lisa Forsberg, and a newborn. He testified he and Ms. Forsberg were married in July 2019. He testified he purchased 175 West 12th Street and made payments for the premises for several years. Respondent testified he had not seen the predicate ninety (90) day notice to quit before. Respondent testified that he had never seen the notice of petition before, that no one had ever spoken to him about it, and he did not know if his wife was ever served. When asked by his attorney if “anyone ever communicate[d] with [him] in any way about serving [him] legal papers in connection with…this lawsuit,” respondent replied “Yes.” (Id. at 64, lines 21-25.) When asked by his attorney “who aside from me, who was that,” respondent testified that his wife alerted him to documents that the doorman had handed to her, described as a “stapled packet that was half-ripped” and “wasn’t complete” and that this was how he was made aware of this proceeding. (Id. at 64, line 25, through 65, lines 1-7.) When asked if he recognized the petition, he stated that he did not recognize it; when asked if he had ever seen the petition before, respondent testified “[i]t doesn’t look familiar.” (Id. at 66, lines 6-12.) Respondent testified he recognized the verified answer and that he recognized his signature on the last page. Cross-Examination of Todd Courthey On cross-examination, respondent acknowledged he obtained a mortgage for 175 West 12th Street on January 19, 2007; when asked if he defaulted on the mortgage as of November 1, 2007, respondent testified he did default on the mortgage at some point and was part of a foreclosure proceeding regarding 175 West 12th Street. He testified he purchased 175 West 12th Street and rented it out when not living there. He testified he purchased 175 West 12th Street as his primary residence, but “a relationship didn’t work out to start a family in it” and he subsequently decided to rent out the premises to an individual who did not pay rent for an extended period of time, leading respondent to fall into arrears and cause other financial problems. (Id. at 69, line 21, through 70, line 7.) Respondent testified he lived at 140 7th Avenue during the time he rented out 175 West 12th Street. He testified he filed an answer in the foreclosure proceeding, had an attorney, and that he has been involved in litigation pertaining to 175 West 12th Street for over nine years. Respondent testified he was aware of a sale of 175 West 12th Street but could not state when the sale took place, which led to the instant holdover proceeding. He testified he and his wife have felt harassed and emotionally traumatized, that they still remain at 175 West 12th Street, and that he is not paying the mortgage or rent for 175 West 12th Street. He testified it is more expensive to litigate than it is to pay for rent and to stay at 175 West 12th Street. He testified he was not sure if 175 West 12th Street is a red brick building, that it is a corner building, that there was scaffolding in front of the building in May 2019, and that it is a doorman building with multiple staff in the lobby, including back in 2019, but that there is no concierge. He testified he did not know the staff’s job descriptions and whether it included security. He testified that Jimmy Acevedo was the doorman for the building in 2019. (Id. at 79, lines 18-21.) He testified he was not sure of the color of the exterior of 140 7th Avenue, and that the property was close in distance to 175 West 12th Street. He testified he does not remember every single piece of paper that he looked at in 2019. On redirect, respondent testified there was a pause of litigation in 2020 that lasted for a couple of years. CLOSING ARGUMENTS At closing arguments, petitioner argued Mangual presented credible testimony as an experience process server who followed Alstate’s regular procedures for serving process, and who had previously served the predicate notice to quit at both 175 West 12th Street and 140 7th Avenue. Mangual recorded his efforts to serve process at 140 7th Avenue in both the work ticket and affidavit of service, and his attempts were noted in his logbook. Mangual’s testimony that there was a doorman at 175 West 12th Street and that he served Jimmy Acevedo was corroborated by respondent’s testimony that there was a doorman at 175 West 12th Street and that he received the papers from his wife, who herself had received the papers from the doorman. Petitioner argued Mangual was an impartial witness, whereas respondent has a vested interest in prolonging this proceeding, and that his testimony should be completely disregarded. Respondent argued petitioner cannot both argue that respondent’s testimony corroborated that of Mangual, but that his testimony should be entirely disregarded. Respondent argued he has a right to defend himself. Respondent argued Mangual’s testimony was not credible; for instance, Mangual testified he began working at Delta Court Service in February 2020, but also began working at Alstate in late 2018. Mangual did not testify to any “independent recollection” of service and had to be directed not to look at and read from records. (Id. at 92, lines 8-10.) Citing two lower court cases, respondent argued the affidavit of service was hearsay evidence that could not be used as proof of the truth of its contents. Respondent argued that the logbook did not reference service of the petition upon respondent, that it only indicated alleged service of the notice of petition, or “NOP.” POST-HEARING BRIEFS In his post-hearing brief, respondent contends Mangual did not testify with any “independent recollection” of service, and that he read directly from the work tickets, the logbook, and the affidavit of service. (NYSCEF Doc No. 58, respondent’s attorney’s post-traverse hearing brief at 3.) Respondent notes the court did not admit the photographs into evidence, and that the logbook only includes entries regarding the notice of petition, and not the petition. (Id. at 4.) Respondent argues Mangual’s testimony was unreliable and contradictory; as an example, respondent notes Mangual testified that he began working with Alstate in 2019, but that he stopped working with Delta Court Service in 2020. (Id. at 4-5.) Respondent contends the logbook is self-serving and that the only other supporting evidence of service is the affidavit of service, which respondent argues is not admissible for the truth of its contents. Moreover, respondent argues the affidavit of service does not attest to prior attempts of service on May 6, 2019 and May 7, 2019, and that it conflicts with the entries in the logbook, in that the affidavit of service states the notice of petition and petition were served at 7:47 on a person with “grey” hair, but the log book entry shows service at 7:52 on a person with “black” hair. (Id. at 5, 7.) Petitioner argues in its post-hearing brief that Mangual had a “clean record” as a duly-licensed process server. (NYSCEF Doc No. 59, petitioner’s attorney’s post-hearing brief at 7.) Petitioner contends that “even if [Mangual's] recollection had been reduced — while noting that these events occurred more than four years before the date of his testimony, and after his having been involved in hundreds of service events since that time — New York Courts are clear that an ‘independent recollection’ is not a required element to prove proper service….” (Id. at 10-11.) Petitioner argues respondent “conceded service” when he testified at the traverse hearing that his wife alerted him to documents that were handed to her by the doorman, which is how he was made aware of this proceeding, and that he contacted his attorney after reviewing the documents. (Id. at 8.) If not conceding service, petitioner contends this testimony corroborates Mangual’s testimony of serving the papers “to a lobby staff member and that the documents reached [r]espondent via his wife i.e. [r]espondent was served.” (Id.) Petitioner argues Mangual provided work tickets and the logbook to corroborate his testimony, and that Mangual testified he uploaded information regarding service “into a digital program that also memorialized this information.” (Id. at 9.) Petitioner argues respondent has a “vested interest” in this proceeding, while Mangual “has no[] such interest.” (Id.) Petitioner contends Mangual’s “rendition of events has remained consistent throughout the entirety of this case, for over four years.” (Id. at 10.) Petitioner notes the affidavit of service includes a description of the recipient’s hair as “black/grey,” matching descriptions in the logbook and in Mangual’s testimony. (Id.) As for Mangual’s testimony of his work history, petitioner argues it is irrelevant to the issue of proper service, does nothing to “cloud” Mangual’s testimony, and that it is “clear” that Mangual spoke to “approximations of when he worked at various agencies….” (Id.) DISCUSSION Petitioner bears the burden of proving proper service of the notice of petition and petition at a traverse hearing. (See Aurora Laon Servs., LLC v. Revivo, 175 AD3d 622, 623 [2d Dept 2019]; SYZ Holdings, LLC v. Brecht Forum, Inc., 30 Misc 3d 64 [App Term, 2d Dept 2010].) In a doorman building, service upon the doorman is proper if the doorman denied the process server access to the respondent’s apartment. (F.I. duPont, Glore Forgan & Co. v. Chen, 41 NY2d 794, 797 [1977]; Bank of America, N.A. v. Grufferman, 117 AD3d 508, 508 [1st Dept 2014]; Charnin v. Cogan, 250 AD2d 513, 517 [1st Dept 1998].) Here, the court weighs the testimony and documentary evidence in petitioner’s favor and finds that respondent was properly served with the notice of petition and petition. Mangual was a credible witness, who testified that he signed the affidavit of service, that he has personal knowledge of the information in the affidavit of service, and that the affidavit of service was made contemporaneously with said information. (June 21 tr at 70, line 21 through 71, line 16.) Although Mangual referred to his logbook and work tickets for the dates and times he attempted service at both addresses, without testifying to his own recollection, “[w]here a process server has no independent recollection of events, a process server’s logbook may be admitted in evidence as a business record [internal citation omitted].” (Sperry Assoc. Fed. Credit Union v. John, 160 AD3d 1007, 1009 [2d Dept 2018].) Respondent argues Mangual had to read from the work tickets and logbook in order to recount his attempts at service on respondent, thus demonstrating his lack of independent recollection. However, “a witness may read into the record from the contents of a document which has been admitted into evidence….” (JPMorgan Chase Bank, N.A. v. Akanda, 177 AD3d 718, 719 [2d Dept 2019] [internal citations and quotations marks omitted]; see also Blackwood v. Chemical Corn Exchange Bank, 4 AD2d 656, 658 [1st Dept 1957] ["We are also of the opinion that plaintiffs exhibit 4 was improperly received in evidence. Under proper circumstances, and with questions in proper form, a statement which contradicts the testimony of a witness may be introduced for the purpose of impeachment. The contents of such a statement should not be read until admitted in evidence[] and hearsay and conclusory matters in such a statement should be excluded.”] [emphasis added].) Here, the work tickets, the logbook, and copies of the logbook were already admitted into evidence at the time Mangual read from those documents. Moreover, it is not lost on this court that, as noted supra, the traverse hearing took place more than four years after the commencement of this proceeding, due to the subsequent onset of the COVID-19 pandemic which upended the lives of millions of people, the ensuing delays resulting from respondent’s applying (and being denied) for benefits through the ERAP program, and his unsuccessful appeal of this court’s order vacating the ERAP stay. (See Rowlan v. Brooklyn Jewish Hosp., 100 AD2d 844, 845 [2nd Dept 1984] ["[T]he process server, a legally disinterested party, enhanced his credibility by refraining from reciting explicit details of an unremarkable, routine event which had taken place over three years earlier.”] [internal citation omitted]; U.S. Equities Corp v. Cavadias, 75 Misc. 3d 1223 [A], 2022 NY Slip Op 50648 [U], *4 [Civ Ct, New York County 2022] ["The Court is mindful that the hearing concerns an alleged act that occurred over seventeen years ago…. It is not subject to reasonable dispute that memories fade over time. Given that [the process server] was serving various papers in various places for decades, one particular act of service would very likely be utterly unremarkable such that [his] memory of it would be particularly vulnerable to time. Given the passage of time, there is very little to draw from [the process server's] lack of recollection. Indeed, courts treat the unaided memory of process servers as suspect given the sheer volume of papers they are often called upon to serve.”] [internal citations and quotation marks omitted]; Manhattan Realty Co. 1, LP v. Goldman, 61 Misc 3d 1205 [A], 2018 NY Slip Op 51372 [U], *5 [Civ Ct, New York County 2018] [finding "minor inconsistencies" in process server's testimony regarding dates and times of service "d[id] not detract from his credible testimony at [the] hearing,” and “weighing the documentary evidence…in [petitioner's favor, against any discrepancies in the [p]rocess [s]erver’s testimony with respect to the date and time of service or his inability to recollect minor details of a service he conducted months earlier.”]) Respondent was a nervous witness, although this may be his natural disposition. Respondent testified that he did not recognize either the notice of petition or the petition, but that his wife received papers from the doorman which appeared as “a stapled packet that was half-ripped.” The court credits Mangual’s credible, disinterested testimony and petitioner’s corroborating documentary evidence over respondent’s testimony that he did not recognize either the notice of petition and petition, despite acknowledging that he received papers from his wife, whom he testified received said papers from the doorman, testimony that serves to further corroborate petitioner’s evidence and Mangual’s testimony. Moreover, respondent did not seek to admit those original, “stapled-packet…half-ripped” papers into evidence for the court to see for itself what exactly he claimed to have received from his wife, but instead introduced copies of the notice of petition and petition into evidence. Respondent argues the logbook makes no mention of the petition, only referencing “NOP” for “notice of petition.” In addition, while not addressed by either party at closing arguments or in post-hearing briefs, when questioned by respondent’s counsel during cross-examination if he had “ever nail[ed] any papers in this case to any door,” Mangual testified, “I’ve posted,” and answered “[o]n the door” when asked where he had posted, testimony appearing to be in direct conflict with his earlier testimony and the evidence of service on the doorman. (Sept 22 tr at 40, lines 16-25; at 41, lines 1-8.) However, while the “NOP” notation in the logbook and Mangual’s testimony about posting papers to the door raise some “perplexing question[s]” as to the method of service, “ it seems undisputed from all of the evidence that the process server in fact had gone to” 175 West 12th Street and served the doorman with the notice of petition and petition. “It is not easy to believe that the process server, having gone so far in discharge of his duties, should at that point have decided to” effect service in a different manner, solely based on a notation of “NOP” in the logbook for the attempts at service on respondent. (Oxhandler v. Sekhar, 88 AD2d 817, 818 [2d Dept 1982].) Moreover, Mangual’s isolated statement that “I’ve posted,” in and of itself, does not amount to such a contradictory statement that completely diminishes the credibility of the bulk of his testimony and the corroborating documentary evidence. It appears that Mangual’s answer as phrased indicates that he may have been talking about past services, coming on the heels of numerous questions about his past experience in process serving. Notably, respondent’s attorney, a seasoned litigator, moved to dismiss immediately after Mangual’s testimony that he has posted, and did not point to this ostensible inconsistency as a grounds for dismissal. Consistent with respondent’s attorney’s notable disregard of this aspect of Mangual’s testimony, respondent’s attorney docs not argue this in his post-hearing brief. CONCLUSION Accordingly, the court denies the traverse and dismisses the personal jurisdiction defense. The court calendars this matter for settlement or a pre-trial conference on June 20, 2024 at 9:30 in Part F, Room 523 of the courthouse located at 111 Centre Street, New York. NY. This constitutes the decision and order of the court. Dated: May 23, 2024
