Decided August 8, 2003.
Borah, Goldstein, Altschuler, Schwartz Nahins, P.C., New York City (Bradley S. Silverbush of counsel), for petitioner.
Law Firm of Adam Leitman Bailey, P.C., New York City (Adam L. Bailey of counsel), for respondents.
On May 12, 2003, petitioner began this pet-holdover proceeding by serving respondents with copies of a notice of petition and petition. Petitioner alleges that respondents are harboring a dog in their studio apartment.
Respondents move to dismiss this proceeding. Respondents argue that petitioner failed to serve them properly with copies of the petition and notice of petition. Respondents submit a July 14, 2003, affidavit of undertenant Tracy Kahn. Kahn states that she was in her studio apartment on May 12, 2003, at 7:22 p.m., when Neil Schrager, the process server, claims to have effectuated conspicuous service. Kahn avers that it was impossible for Schrager to have attempted personal service before he resorted to conspicuous service. According to Kahn, if Schrager had attempted to serve copies of the notice of petition and petition personally, she would have heard him knock on the door of the studio apartment. To corroborate that she was in her studio apartment at the relevant time period, Kahn submits a telephone bill. The telephone bill shows that she was on the telephone for 26 minutes at 6:19 p.m. and again at 7:23 p.m. for two minutes. She argues that at 7:22 p.m., when she was off the telephone, she would have heard Schrager knock on the door and would have opened it and received copies of the petition and notice of petition. Kahn claims that later that evening, when she left the studio apartment to take the garbage out, she discovered copies of the petition and notice of petition affixed to her studio apartment's door.
In response to respondents' motion for a traverse hearing, petitioner argues that respondents present a conclusory denial of a knock on the door and that respondents do not deny any relevant facts in Schrager's affidavit of service.
Petitioner argues that Schrager properly served the petition and notice of petition and that respondents' denial of receipt is insufficient to rebut this presumption. Petitioner submits an affidavit from Schrager, who swears that he knocked on the door and rang the bell.
As this court promised at oral argument, this court read every case to which petitioner cited in its three sets of papers on the topic. The cases most on point are discussed below.
Petitioner cites a series of cases for the proposition that proof of proper mailing creates a presumption of receipt. ( See Kihl v. Pfeffer, 94 NY2d 118, 122; News Syndicate Co. v. Gatti Paper Stock Corp., 256 NY 211, 215-216; Engel v. Lichterman, 95 AD2d 536, 540-545 [2nd Dept 1983], affd 62 NY2d 943, 944 [1984, mem].) But the issue before the court has nothing to do with mailings. Petitioner also cites cases that affidavits prove the facts sworn to, proof on which a petitioner is entitled to rely. ( See Rox Riv 83 Partners v. Ettinger, 276 AD2d 782, 783 [2nd Dept 2000, mem]; Conforti v. Goradia, 234 AD2d 237, 237-238 [1st Dept 1996, mem]; Matter of Baer v. Lipson, 194 AD2d 787, 787 [2nd Dept 1993, mem], appeal dismissed 83 NY2d 788; Olmo v. Olmo, 102 AD2d 864, 865 [2nd Dept 1984, mem]; 349 E. 49th St. Equities Ltd. v. Vought, NYLJ, May 27, 1982, at 5, col 4 [App Term 1st Dept]; Eichenholz v. Silberfeld-Eichenholz, NYLJ, Oct. 31, 1991, at 27, col 3 [Sup Ct, Queens County].) But respondents do not deny that service was attempted; respondents contend only that Schrager did not fully knock, and thus that Schrager did not use reasonable application to effect personal service.
Petitioner also cites cases that a conclusory denial of receiving process is insufficient to rebut service. ( See Lichtman v. Mount Judah Cemetery, 269 AD2d 319, 320 [1st Dept 2000, mem]; Greiff v. Liebman, NYLJ, Feb. 10, 1988, at 6, col 1 4 [App Term 1st Dept, per curiam]; Denning v. Lettenty, 48 Misc 2d 185, 185 [Sup Ct, NY County 1965].) But respondents' allegations are supported by facts. Petitioner also cites a case in which the court held that proper service negates a deficiency in a process server's affidavit. ( See Morrissey v. Sostar, S.A., 63 AD2d 944, 944 [1st Dept 1978, mem].) But respondents challenge the veracity of Schrager's affidavit, not any deficiency in it. Finally, petitioner cites a case that an affidavit from a person without personal knowledge is worthless. ( See Hasbrouck v. City of Gloversville, 102 AD2d 905, 905 [3d Dept 1984, mem], affd 63 NY2d 816, 816 [1984, mem].) But Kahn's affidavit is based on personal knowledge.
Kahn's affidavit calls into question Schrager's resort to conspicuous service and is not based on conclusory allegations. She states that she was in the studio apartment on May 12, 2003, at 7:22 p.m., when Schrager resorted to conspicuous service. By submitting a copy of her telephone bill, Kahn corroborated her statement that she was in the apartment. The telephone bill demonstrates that she was off the phone at 7:22 p.m. and would have heard Schrager knocking on the door. Although Schrager's affidavit notes he effected service when she would have been dialing the telephone, respondents have created an issue of fact about whether Schrager engaged in a reasonable attempt to serve personally before resorting to conspicuous service. Respondents are therefore entitled to a traverse hearing to resolve the issue of service. It is possible that the hearing judge will conclude, as petitioner argues, that Kahn missed the knock at the door because she was on the telephone in her studio apartment. The resolution of that issue is for the traverse court, however, and not for this motion court on the cold papers.
This matter is adjourned to August 21, 2003, Part C, Room 844, 9:30 a.m., for a traverse hearing. If traverse is overruled, the proceeding shall be referred to Part C for all purposes.
This opinion is the court's order and decision.