DEFENDING A COLLECTION CASE ON LACK OF SERVICE GROUNDS

When this crisis is over, expect a lot of collection actions and expect a lot of defendants to claim they were never served. Now in this case, from 8:48pm to 9:20pm, or in 32 minutes, the process server claims to have served 5 parties within a 2 mile distance - which according to the above Google Maps, means 19 minutes of driving, 13 minutes of parking, going into 5 buildings, waiting for the elevator, and attempting the service, etc. or about 2.5 minutes per service. Is it possible? This court said yes.

UNIFUND CCR LLC v. SEIFULLAH, 2020 NY Slip Op 50339 - NY: City Court, Civil Court, Bronx, March 9, 2020:

In this action for breach of contract, defendant's motion pursuant to CPLR § 3211(a)(8) seeking dismissal of this action on grounds that the Court has no personal jurisdiction over her is denied.
The complaint alleges that defendant was issued a credit card by plaintiff's predecessor in interest, the use of which was governed by an agreement between the same parties. It is alleged that defendant made purchases using the card and in failing to pay plaintiff's predecessor in interest, breached the agreement. It is also alleged that plaintiff was assigned the foregoing debt and that it is owed $6,131.75.

On April 25, 2019, the Court (Doherty, J.) denied defendant's motion pursuant to CPLR § 3211(a)(8), seeking dismissal of the complaint for want of personal jurisdiction. Defendant appealed and on November 18, 2019, the Appellate Term, First Department reversed thE Court's Decision and Order and remanded the case for a traverse hearing (Unifund CCR LLC v Seifullah, 65 Misc 3d 149[A], *1 [App Term 2019] ["Thus Civil Court should have conducted a traverse hearing before resolving defendant's motion to dismiss."]).

On March 5, 2020, this Court held a traverse hearing.

To the extent relevant, the parties stipulated to the admission of five documents into evidence. First, Carl Raymond Bouton's (Bouton) Process Server's license was admitted into evidence (Plaintiff's Exhibit 1). The license indicates that Bouton was a licensed Process Server in the City of New York. The license had an expiration date of February 28, 2020. Second, Bouton's affidavit of service of the summons and complaint in this action, evincing service of the same upon defendant, was also admitted into evidence (Plaintiff's Exhibit 2). The affidavit of service indicates that on October 31, 2018, at 9:04pm, Bouton served the summons and complaint upon defendant by leaving a copy of the same with Khalid Seifullah (Khalid), a person of suitable age and discretion, at the premises located at 3405 Kossuth Avenue, Apt. 4D, Bronx, NY 10467 (3405). The affidavit indicates that the summons and complaint were also mailed to defendant at the address above on November 1, 2018. A stamp on the affidavit indicates that it was filed with the Court on November 2, 2018. Third, portions of Bouton's logbook were also admitted into evidence (Plaintiff's Exhibit 3). The logbook contains an entry memorializing the service of the summons and complaint upon defendant. Said entry is consistent with the affidavit of service. Fourth, a photograph bearing the date, time, and GPS information was admitted into evidence (Plaintiff's Exhibit 4). The photograph depicts the entrance of a building, contains GPS coordinates and is date/time stamped. The forgoing stamp indicates that the photograph was taken on October 31, 2018 at 9:03 pm. Fifth, defendant's renewal lease was also admitted into evidence (Defendant's Exhibit C). The lease indicates that on December 1, 2017, defendant resided at (3405) and renewed the lease for an additional two years.

The Court also admitted five affidavits into evidence, over plaintiff's objection and upon defendant's request that the Court take judicial notice of them^[1] (Defendant's Exhibit B). The first two affidavits indicate that Bouton served process upon unrelated non-parties in other cases prior to effectuating service upon defendant. Specifically, at 8:48pm, Bouton served process upon a defendant by leaving a copy of the summons and complaint with a person of suitable age and discretion at the premises located at 2505 Olinville Avenue, Apt. 6D, Bronx, NY 10467. Bouton also served process upon another defendant at 8:59pm, by leaving a copy of the summons and complaint with a person of suitable age and discretion at the premises located at 3530 Bainbridge Avenue, Apt. 4F, Bronx, NY 10467. The third affidavit made part of this exhibit is the one for service upon defendant, while the fourth and fifth are for service effectuated by Bouton after purported service of process upon defendant. Specifically, at 9:14pm, Bouton served process upon a defendant by leaving a copy of the summons and complaint with a person of suitable age and discretion at the premises located at 3560 Rochambeau Avenue, Apt. 4C, Bronx, NY 10467. At 9:20pm, Bouton also served process upon a defendant by leaving a copy of the summons and complaint with a person of suitable age and discretion at the premises located at 3467 Dekalb Avenue, Apt. 1E, Bronx, NY 10467.

At the hearing, plaintiff elicited testimony from Bouton, who testified, in pertinent part, as follows: Bouton is a licensed process server, who some time around October 31, 2018, was asked by plaintiff to serve the summons and complaint in this action upon defendant. On October 31, 2018, as was his custom and practice, defendant set out to serve process upon multiple defendants with his wife. Generally, his wife drove their vehicle and Bouton would exit the vehicle and serve process at designated locations. At some point that night, his wife drove him to 3405. Bouton exited his vehicle and was able to enter the building because someone was exiting. Bouton took the elevator to the fourth floor and knocked on the door to apartment 4D. A man answered the door and indicated that defendant was not home. The man gave Bouton his name, which was Khalid, indicated that defendant was not in the military, and accepted the summons and complaint on defendant's behalf. Bouton then ran down the stairs and as he did so, used his telephone to input the information regarding service upon defendant in the Independent Server, a service/database which keeps track of service by process servers. The next day, Bouton, with the aid of the Independent Server, created the affidavit of service evincing service upon defendant, memorialized the same in his logbook and mailed a copy of the summons and complaint to defendant. At some point, either immediately before or after effectuating service upon defendant, he photographed the front of 3405 using software on his telephone which inscribed the location of where the picture was taken using GPS coordinates as well as the date and time it was taken. Bouton testified that he served approximately 18 people that day and described service upon two people immediately before and after service upon defendant. With regard to the four locations in between which service upon defendant was sandwiched, Bouton testified that the locations were either only several minutes away or right next door to 3405. Bouton testified that he was not aware of any instance where service by him had been found defective. When confronted with a decision by this Court (Kraus, J.), where service by him had been found defective after a traverse hearing, Bouton testified that he had not reported the decision as required because he was unaware of it.

Defendant also testified at the hearing, stating, in pertinent part, as follows: on October 31, 2018, she resided at 3405 with her daughter and no one else. On that day, she worked from 10am-6pm and commuted to work by bus. As was her custom and practice, when she got home that evening, she proceeded to move her vehicle because of the alternate side of the street parking rules. Because parking in her neighborhood was difficult to find, she ordinarily parked several blocks away. Defendant finally got home at 8pm, spoke to her daughter, cooked dinner and showered. Defendant then watched television and ultimately went to bed at 10pm. Defendant testified that on October 31, 2018, if someone had knocked on her door, either she or her daughter would have answered. Defendant also testified that 3405 did not have an elevator. Defendant denied knowing anyone named Khalid or that she received the summons and complaint that night.

Based on the foregoing, crediting Bouton's testimony and the documents supporting service of process upon defendant, the Court denies defendant's motion for dismissal of the complaint finding that defendant was properly served with the summons and complaint pursuant to CPLR § 308(2). As such, this Court has personal jurisdiction over defendant.

It is well settled that a motion to dismiss for lack of personal jurisdiction pursuant to CPLR § 3211(a)(8) will be granted when it is established that service of process upon a defendant was improper (Feinstein v Bergner, 48 NY2d 234, 234-235 [1979] [Court dismissed complaint for lack of personal jurisdiction when defendant was served with process by nail and mail service at an address where defendant no longer resided.]; West v Doctor's Hospital, 198 AD2d 92, 92 [1st Dept 1993] [Court granted motion to dismiss for want of personal jurisdiction, holding that service was improper when summons and complaint were left with someone on the 14th floor, rather than the 8th floor — the floor where defendant maintained his office.]; O'Connell v Post, 27 AD3d 630, 630-631[2d Dept 2006] [Court granted motion to dismiss for lack of personal jurisdiction holding that service was improper when plaintiff resorted to nail and mail service without attempting to serve defendant at his place of business]).

It is well settled that the burden of establishing personal jurisdiction and proper service rests with the plaintiff (Frankel v Schilling, 149 AD2d 657, 659 [2d Dept 1989]; Torres v Corpus, 131 AD2d 463, 464 [2d Dept 1987]). Generally, an affidavit evidencing proper service upon the defendant is sufficient to support a finding of jurisdiction (Skyline Agency, Inc. v Ambrose Coppotelli, Inc., 117 AD2d 135, 139 [2d Dept 1986]). As such, an affidavit of service is prima facie evidence of proper service (Caba v Rai, 63 AD3d 578, 582-583 [1st Dept 2009]; NYCTL 1998-1 Trust Bank of NY v Rabinowitz, 7 AD3d 459, 460 [1st Dept 2004]; Scarano v Scarano, 63 AD3d 716, 716 [2d Dept 2009]; Simonds v Grobman, 277 AD2d 369, 370 [2d Dept 2000]), and personal jurisdiction will be upheld, without a traverse hearing, if the only evidence submitted to controvert service is a bare denial of service (Caba at 583; Simonds at 370; Beneficial Homeowner Service Corp. v Girault, 60 AD3d 984, 984 [2d Dept 2009]; Chemical Bank v Darnley, 300 AD2d 613, 613 [2d Dept 2002]), or by reference to a minor discrepancy, such as the description of the recipient listed in the server's affidavit (Green Point Savings Bank v Clark, 253 AD2d 514, 515 [2d Dept 1998]). Stated differently, a mere conclusory denial of service does not negate the propriety of service established by an affidavit of service (Caba at 683 [Sworn denial conclusorily stating that defendant was not served was insufficient to rebut service as evinced by the affidavit of service.]; Rabinowitz at 460 [Defendant negated service of process upon him by citing to the affidavit of service and pointing to the deficiencies therein.]). In order to properly assail service so as to warrant a hearing, the defendant's affidavit must specifically rebut the facts in the plaintiff's affidavit of service (Caba at 683; Simonds at 370). If the denial of service is factually specific, then the court must hold a traverse hearing before deciding whether it has personal jurisdiction over the defendant (Frankel v Schilling, 149 AD2d 657, 659 [2d Dept 1989]; Powell v Powell, 114 AD2d 443, 444 [2d Dept 1985]).

At a traverse hearing, plaintiff bears the burden of establishing service upon the defendant (Chaudry Const. Corp. v James G. Kalpakis & Assoc., 60 AD3d 544, 545 [1st Dept 2009]; Schorr v Persaud, 51 AD3d 519, 519-520 [1st Dept 2008]). Moreover, at the hearing, the trial court can resolve issues of credibility, such resolution accorded great deference, and absent a determination that it is against the weight of the evidence, cannot be disturbed on appeal (Saperstein v Lewenberg, 11 AD3d 289, 289 [1st Dept 2004]; McCray v Petrini, 212 AD2d 676, 676 [2d Dept 1995]; Avakian v De Los Santos, 183 AD2d 687, 688 [2d Dept 1992]). Indeed, it is well settled that "in a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference" (People v McCoy, 100 AD3d 1422, 1422 [4th Dept 2012]; see Ning Xiang Liu v Al Ming Chen, 133 AD3d 644, 644 [2d Dept 2015]). Moreover,

[a] judicial factfinder should make credibility determinations on the basis of demeanor, forthrightness in answering, consistency or lack thereof in the account being given, interest in the outcome and other relevant considerations(Gass v Gass, 42 AD3d 393, 401 [1st Dept 2007]).

In New York City, all process servers who engage in service of process on five or more occasions must be licensed by the New York City Department of Consumer Affairs (New York City, NY, Code § 20-404). § 20-404(a) defines a process server as

a person engaged in the business of serving or one who purports to serve or one who serves personally or by substituted service upon any person, corporation, governmental or political subdivision or agency, a summons, subpoena, notice, citation or other process, directing an appearance or response to a legal action, legal proceeding or administrative proceedings.

In addition, New York City, NY, Code § 20-403 imposes a licensing requirement upon process servers and states that "[i]t shall be unlawful for any person to be employed as or perform the services of process server without a license therefor."

General Business Law (GBL) § 89-cc mandates that all process servers keep a record of the process they serve and 22 NYCRR 208.29 mandates that when a process server is called to testify at a traverse hearing, he/she is required to bring all records in his possession related to service.
The forgoing rules

were designed to combat a continuing and pervasive problem of unscrupulous service practices by licensed process servers. These practices deprive defendants of their day in court and lead to fraudulent default judgments. Often associated with consumer debt collection and landlord-tenant litigation, questionable service practices have their greatest impact on those who are poor and least capable of obtaining relief from the consequences of an improperly imposed default judgment. Accordingly, the Department of Consumer Affairs must depend on the accurate record-keeping practices of its licensees as a means of monitoring the industry and uncovering wrongful practices. Petitioner's repeated disregard for the strictures of the agency's record-keeping provisions was a direct violation of the terms of his license and, further, was antithetical to the regulatory goal of assuring honest service practices(Barr v Dept. of Consumer Affairs of City of New York, 70 NY2d 821, 822-823 [1987]).

Accordingly, trial courts have routinely declined to credit a process server's testimony regarding service when the witness fails to keep records in accordance with the statutory requirements (Barr at 822-823), fails to bring all papers — such as his logbook — related to the service at issue to a traverse hearing (First Commercial Bank of Memphis, N.A. v Ndiaye, 189 Misc 2d 523, 526 [Sup Ct 2001]; Masaryk Towers Corp. v Vance, 12 Misc 3d 1172[A], *9 [Civ Ct 2006]; Borges v Entra Am., Inc., 7 Misc 3d 1032[A] [Civ Ct 2005]), or fails to demonstrate that he was properly licensed (Borges at *6).

The rationale underpinning the decision not to credit a process server who fails to comply with the statutory record keeping requirement is simply one of memory — which is lost over time. It is a recognition that memory fades with time and as such, reliance upon proper records is paramount. This is particularly true of process servers who normally engage in the service of many items in their day to day employment and for whom there exist many months between service and being called upon to testify regarding a particular instance of service (Masaryk at *9. Accordingly, proper record keeping is essential to ensure accuracy (id.). In First Commercial of Memphis, the court stated that

[m]any months passed between the time of alleged service and the traverse hearing. The unaided memory of the process server, who may have served hundreds of people in the interim, is unreliable. The plaintiff has the burden of proving jurisdiction by a preponderance of credible evidence. In this case, the plaintiff has not met this burden in producing a process server whose records do not conform with statutory requirements(id. at 526).

Pursuant to 22 NYCRR 208.1(b), the court can waive compliance with any of the Uniform Rules for the New York State Trial Courts when good cause is shown. However, to the extent that there exists strong public policy to support the rules and regulations governing service of process, strict compliance with said rules is required. As such, the court shall not waive the documentary requirements imposed upon process servers by 22 NYCRR 208.29 (Inter-Ocean Realty Assoc. v JSA Realty Corp., 152 Misc 2d 901, 903 [Civ Ct 1991] [Court declined to credit process server's testimony regarding service when he failed to bring the same to traverse hearing. Court concluded that the process server's excuse for failure to bring his logbook, namely, that it had been stolen, was unsubstantiated with corroborating evidence.]).

Here, upon consideration of all of the evidence offered at the traverse hearing, the Court finds that plaintiff established that defendant was, in fact, served with the summons and complaint in this action. To be sure, at a traverse hearing, plaintiff bears the burden of establishing service upon the defendant (Chaudry Const. Corp. at 545; Schorr at 519-520) and at the hearing the trial court is tasked with resolving issues of credibility; such resolution accorded great deference, which absent a determination that it is against the weight of the evidence, cannot be disturbed on appeal (McCray at 676; Avakian at 688).

Significantly, Bouton testified that on October 31, 2018, he served defendant with the summons and complaint in this action when he left the same with Khalid, a person of suitable age and discretion, who answered the door to defendant's apartment and was wiling to accept service on defendant's behalf. While trial courts routinely decline to credit a process server's testimony regarding service when the witness fails to keep records in accordance with the statutory requirements (Barr at 822-823), fails to bring all papers, such as his logbook, related to the service at issue to a traverse hearing (First Commercial Bank of Memphis, N.A. at 526; Masaryk Towers Corp. at *9; Borges at * 6) or fails to demonstrate that he was properly licensed (Borges at *6) here, Bouton was licenced and produced his license at the hearing, memorialized service in his logbook, which was admitted into evidence, and produced a photograph of plaintiff's building bearing an indelible time, date, and GPS stamp. To the extent that with regard to the latter, Bouton testified that an application on his phone automatically inscribed the date and time the photograph was taken on the picture as well as the GPS coordinates for the location where the picture was taken, the photograph is incontrovertible evidence that Bouton was, in fact, at defendant's building on October 31, 2018 at 9:03 pm; the same date and approximate time that Bouton testified he effectuated service upon defendant and which his contemporaneous documents — the logbook and affidavit of service — support.

The Court did not find that defendant testified credibly with regard to her denial of service and her testimony that she did not know anyone named Khalid. Moreover, the Court was not persuaded by her counsel's attempts to convince the Court that Bouton either could not — given the short intervals between service — have properly served as many people as indicated in the affidavits of service submitted into evidence by defendant or that because everyone served by Bouton that night were served by substituted service, that he, in essence, served no one at all.

Based on the foregoing, since it is well settled that the burden of establishing personal jurisdiction and proper service rests with the plaintiff (Frankel at 659; Torres at 464), here, the evidence demonstrates that defendant was served pursuant to CPLR § 308(2)^[2]. To be sure, the evidence establishes that defendant was served on October 31, 2018 when the summons and complaint were left at her home with Khalid, whose age is listed as 38 years old. The evidence further indicates that the summons and complaint were then mailed to defendant's home the very next day and that the affidavit of service was filed with the Court on November 2, 2018, a day later. It is hereby

ORDERED that all parties appear for a conference on April 30, 2020, in Room 504, Part 11C at 9:30 am. It is further

ORDERED that plaintiff serve a copy of this Order with Notice of Entry upon defendant within thirty (30) days hereof.

This constitutes this Court's decision and Order.

[1] It is well settled that a court can take judicial notice of any and all undisputed court records and files (Khatibi v Weill, 8 AD3d 485, 485 (2d Dept 2004). Indeed, this rule includes the court's own court files and extends to files related to proceedings in other courts (MJD Construction, Inc. v Woodstock Lawn & Home Maintenance, 299 AD2d 459, 459 [2d Dept 2002]; Ptasznick v Schultz, 247 AD2d 197, 199 [2d Dept 1998]; Warner v Board of Education of the City of New York, 14 AD2d 300, n 1 [1st Dept 1961]). When a court chooses to take judicial notice of records, it obviates a foundation for purposes of admitting said documents into evidence (Bernasconi v Aeon, LLC, 105 AD3d 1167, 1169 [3d Dept 2013]; Lagano v Soule, 86 AD3d 665, 667, n 5 [3d Dept 2011]; Secretary of Dept. of Hous. and Urban Dev. v Torres, 2 Misc 3d 53, 55 [App Term 2003]). Here, the Court took judicial notice of the affidavits in its files.
[2] CPLR § 308(2) states that a natural person can be served "by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service."