Opinion
72943/2017
09-20-2018
MANHATTAN REALTY COMPANY 1, LP, Petitioner/Landlord, v. Michael GOLDMAN, Respondent/Tenant.
Attorney for Petitioner: Carl T. Peluso, Esq., Peluso & Touger, LLP, 70 Lafayette Street, 2nd Floor, New York, NY 10013 Attorney for Respondent: David Rozenholc, Esq., David Rozenholc & Associates, 400 Madison Avenue, 19th Floor, New York, NY 10017
Attorney for Petitioner: Carl T. Peluso, Esq., Peluso & Touger, LLP, 70 Lafayette Street, 2nd Floor, New York, NY 10013
Attorney for Respondent: David Rozenholc, Esq., David Rozenholc & Associates, 400 Madison Avenue, 19th Floor, New York, NY 10017
Heela D. Capell, J.
After conducting a traverse hearing, the court makes the following findings and determination:
Manhattan Realty Company 1, L.P. ("Petitioner") commenced this non-primary residence holdover proceeding against Michael Goldman ("Respondent"). The proceeding first appeared on the court's calendar on September 12, 2017. Both sides were represented by counsel from the first court date forward. Respondent filed an answer to the proceeding on September 12, 2017 ("Answer") through counsel. In the Answer Respondent preserved the defense that the court lacks personal jurisdiction over him because the Notice of Petition and Petition ("Notices") were not properly served. Respondent asserted that he could not specify facts in support of the defense because the affidavit of service for the Notices had not reached the court file.
Petitioner filed a motion for discovery and Respondent filed a cross-motion for a traverse hearing, both returnable on November 28, 2017. In support of the cross-motion, Respondent asserted in an affidavit that "no copy of the of a Notice of Petition and Petition were ever affixed to the door of my Apartment on September 5, 2017 or at any other time." With respect to posting the Notices on the door, the affidavit of service sworn to by Darryl Green ("Process Server") provides:
That on the 5th day of September, 2017, at approximately the time of 7:11p.m., deponent attempted to serve a true copy of the NOTICE OF PETITION HOLDOVER AND PETITION HOLDOVER upon MICHAEL GOLDMAN at 177 Hudson Street a/k/a 27 Vestry Street, 2nd Floor, New York, NY 10013 but there was no answer to the knocks on the white apartment door.
At that time, therefore, deponent served a true copy of the foregoing papers upon MICHAEL GOLDMAN by firmly affixing same conspicuously on the white front door (which also stands as the elevator door entrance in to [sic] that apartment) at that address, the actual place of residence, the premises sought to be recovered.
Respondent maintains in the affidavit, that he was home on September 5, 2017, the day that conspicuous place service of the Notices was purportedly effectuated, and "[h]ad a copy of the Notice of Petition and Petition been affixed to the door of my Apartment ... I would certainly have received them." Respondent does not refute any other aspect of service of the Notices in the motion or Answer, other than the placement of the Notices on the door of the Premises. In two separate decisions and orders dated March 14, 2018, the Honorable Michelle Schreiber marked the motion for discovery "off calendar" pending the determination of the traverse hearing and granted the cross-motion to the extent of "ordering a traverse hearing 4/24/18 at 2:15 pm."
This court conducted a traverse hearing on April 24, 2018, May 17, 2018, June 18, 2018 and June 29, 2018. In addition, the court inspected the exterior of the Premises briefly on July 26, 2018. Post-hearing briefs were submitted to the court on September 5, 2018. Because Respondent only raised issues of fact with respect to the conspicuous place service of the Notices, this court limited the scope of the traverse hearing to the issue of whether the Process Server properly effectuated conspicuous place service of the Notices, on September 5, 2017, as provided in the affidavit of service.
Petitioner first called the Process Server, Darryl Green, as a witness. Darryl Green testified that he is employed by DLS Incorporated as a process server. Mr. Green introduced into evidence his process server license (Pet. Ex. 1). The court also took notice of the affidavit of service for the Notices with respect to service upon Respondent on September 5, 2017. The Process Server's Logbook was entered into evidence as Petitioner's Exhibit 2 ("Logbook"). The entry in the Logbook for service in this proceeding reflects that the date of service was September 5, 2017 at the "military time" of "1911," which is 7:11pm Eastern Standard Time. In the area of the Logbook reserved for "Other ID Attributes/Door Description/Area Details" it states, "post on white Apt door, access by Elevator." (Pet. Ex. 2).
The Process Server testified that on September 6, 2017 at 7:07pm, he "posted the notice of petition and petition on the white apartment door accessed by elevator at 177 Hudson Street." He stated that there is no hallway leading into the apartment off of the elevator but that the elevator opens directly into the apartment door and that "there's no other things that you can describe other than the white door."
On cross-examination Mr. Green testified that he arrived at the building after 7pm on the date of service and buzzed the buzzer outside of the building, but did not receive an answer. He was able to enter through the front door of the building, which he described as a "white glass door" with a white bottom by using the key which Petitioner's attorney had provided. The Process Server explained that he entered a "bright" lobby and then pressed the button for the elevator, which was located in the lobby on the first floor, a couple of steps from the front door. He described the size of the elevator as five feet wide and seven feet tall. After entering the elevator, which contained a single white light at the top, he pressed the button for the second floor. He explained that he thought the door to the elevator slid from the left hand side to the right hand side, and recalled that it opened directly to a "white apartment door," and not into a hallway or entryway.
The Process Server explained that when he arrived at the Premises door he had the papers in his hand and ready to post. He was ready to post the papers because he assumed that no one was at the Premises after he rang the buzzer downstairs and there was no answer. He knocked multiple times - for "quite a few minutes" or "five minutes" - before he duct taped the papers to the door. Mr. Green maintained that he had to hold the elevator door open so it did not close on him while he duct taped the papers to the door. To do this, he held the tape and papers in his hand while propping the elevator door open with his shoulder.
The Process Server also described how he entered the information regarding service into his Logbook. He explained that he brought his tablet with him, which he obtained from the Department of Consumer Affairs ("DCA"). The tablet contains a GPS system that he is required to utilize while serving process. After he posted the papers on the door, he rode the elevator back downstairs, exited the building, and accessed the GPS program on the tablet to confirm the location and time of service. He then entered this information into a worksheet. Mr. Green asserted that when he makes an entry as to the time of service, he also looks at his watch. He places the information into the Logbook from the worksheet on the same day as service, or maybe a few days later, depending on the time he has. Within twenty-four hours, a secretary prepares the affidavit of service by copying the information from the worksheet. The Process server explained that here, the affidavit of service for the Notices utilized the typical language for service, which says that the papers were posted to the door at "approximately 7:11pm."
On cross-examination, Respondent introduced into evidence as Exhibit A, the worksheet completed by the Process Server with respect to service of the Notices ("Worksheet"). On the Worksheet, Mr. Green noted, "posted on tan/brown apartment door," but crossed out the words "tan/brown" with a single line, and inserted the word "white" instead. Mr. Green explained that he changed the description of the color of the door on the day he completed service because he felt that the description of "tan/brown" was "too general" and "white was more specific." The Worksheet also contained the handwriting of another process server, Robert Mills, which provided, "[N]o answer on buzzer or knock on white door. Bob."
Respondent called Robert Mills as a witness at the hearing, who appeared after being served with a subpoena to testify. Mr. Mills is a licensed process server who made the first attempt to serve the Notices in this proceeding on September 1, 2017. The affidavit of attempted service is annexed to the Notice of Petition. The witness explained that he did not receive any instruction on how to serve the Notices and that the key to the building was attached to the Worksheet. Mr. Mills' testimony regarding service was similar to Mr. Green's testimony. He explained that he rang the buzzer outside of the building, used the key to get in, took the elevator from the lobby, pressed the second floor button, knocked on the door and received no answer. He then came downstairs, exited the building and used to his tablet to access the GPS program. He did not take any photographs at the time of attempted service. He also testified that the door was "white," that the door did not contain any notations, and that the affidavit of service he signed stated that service was attempted at an "approximate" time.
Respondent also introduced into evidence an affidavit of service sworn to by Mr. Mills on April 20, 2018 for service on the same premises in a subsequent holdover proceeding. (Resp. Ex. C.). In the affidavit, Mr. Mills attests that the door to the premises was "gray" rather than "white." The witness also acknowledged that he did not mention using the elevator in either of the affidavits of service. As Mr. Mills testified, the affidavit of service uses the same language as the affidavit of service signed by Mr. Green, to wit, that service of process was made at an approximate time. (Resp. Ex. C).
Respondent Michael Goldman testified on his own behalf. He has resided at the premises, 177 Hudson Street, 2nd floor, New York, NY for forty years. He lives in the apartment with his wife, two children and a dog. He is a photographer and videographer. The premises is a 3000 square foot full floor loft, half of which is used for residential purposes and and half of which is an open space. Respondent testified that on the September 5, 2017 at 7pm, the date and approximate time of purported service, he was present in the loft but did not hear anyone knock at the door nor ring the bell.
Mr. Goldman explained that the front entrance to the loft is at the western end of the building, which is accessible by utilizing the stairs only and climbing up one flight of stairs ("Stairwell Entrance"). He maintained that the building superintendent had entered the Premises through the Stairwell Entrance the prior Saturday, and on other occasions. The elevator in the building functioned as a service elevator until 2011 or 2012 so he and his family do not use the door leading from the elevator ("Elevator Entrance") to access their apartment because they "got used to not using it." He said that they do not use the Elevator Entrance to enter the loft during their regular course of business; they only do so if they have to accept a heavy delivery. He testified that he accepted a delivery at the Elevator Entrance sometime between September 7, 2017 and September 13, 2017 but did not see the Notices posted on the door.
Mr. Goldman stated that the elevator opens into a former darkroom, which is 200 square feet big. The room is "full of junk," including darkroom equipment, and is separated from the other part of the apartment by a heavy wooden sliding door. He explained that a knock on the door from the elevator could not be heard from other portions of the loft. There is, however, a mechanical bell by the door leading to the room which can be heard from the living portions of the loft. The witness maintained that the color of the Elevator Entrance is light brown and was never white.
Respondent introduced into evidence exhibits D through L which are photographs of the Elevator Entrance, that Respondent took on September 13, 2017. Exhibit D is a photograph taken from inside the elevator facing the Elevator Entrance. The door contains a strip of white tape which contrasts with the color of the door, and is illuminated by the red down arrow in the elevator. In the photograph, the color of the Elevator Entrance is hard to determine because it is distorted by the down signal. Exhibit E is a photograph of the Elevator Entrance taken from the same angle and perspective as Exhibit D, directly facing the entire door straight ahead. The door is illuminated by a white light instead of the red light from the elevator signal in the Exhibit E photo. Exhibit F appears to have been taken from inside of the Premises with the door leading to the closed Elevator Entrance. There is a bright white lighting in the apartment which reflects the Elevator Entrance as off-white or tan. Respondent took Exhibit G while standing inside of the elevator with the door propped open looking into the apartment. Exhibit H is a photograph of the interior of the Premises which is directly behind the Elevator Entrance. The photo reflects a large room filled with equipment that is presumably used for the purposes of professional photography.
Respondent placed in evidence Exhibits I through L consisting of photographs taken on June 19, 2018. Exhibit I is a photograph Respondent took while standing inside the elevator car looking into a closed Elevator Entrance. Respondent testified that he supplied additional light to illuminate the color of the door more easily, giving the door the appearance of an off-white/tan color. Exhibit K is illuminated by the same light as Exhibit I but has white tape, red tape, grey tape and black tape pasted to the door, which also appears to be off-white or tan. Exhibit J is a picture of the door from inside the apartment. Exhibit L is a picture of the Elevator Entrance taken from the same angle and under the same conditions as Exhibit D, which is distorted by the red elevator light, except that a copy of The NY Times is taped to the door in Exhibit L.
At the parties' request, this court conducted an inspection at the building on July 26, 2018. The purpose of the inspection was to take notice of the color of the Elevator Entrance. During the inspection, the court also inspected the Stairwell Entrance and requested that the parties brief the issue raised by Respondent at hearing as to whether service on the Elevator Entrance, rather than the Stairwell Entrance, was proper.
At a traverse hearing the petitioner has the burden to prove that process was properly effectuated by a preponderance of the evidence. ( Woods v. M.B.D. Community Housing Corp., 90 AD3d 430 [1st Dept 2011] ); ( Chaudry Const. Corp. v. James G. Kalpakis & Assocs. , 60 AD3d 544 [1st Dept 2009] ); Petitioner's failure to prove same mandates dismissal of the proceeding. Id. (See also Masaryk Towers Corp., v. Vance , 12 Misc 3d 1172[A] [Civ Ct New York County 2006] ). At traverse hearings, courts place a significant emphasis upon the credibility of the process server. (See SBS Owners Inc. v. Kelly , 19 Misc 3d 141[A] AT 2008 ] ); ( P & J Hous. Partners LLC v. Richere, 8 Misc 3d 17 [App Term 1st Dept 2005] ); ( Fifty-Seven Assocs., LP v. Feinman, 28 Misc 3d 131[A] [App Term 1st Dept 2010] ).
From the outset, the court finds that the Process Server, Darryl Green's, testimony at the hearing was credible. The court was persuaded by the Process Server's independent recollection of a plethora of facts with respect to service. (See Landmark Capital Invs., Inc. v. Li-Shan Wang, 94 AD3d 418 [1st Dept. 2012] ). The court found particularly persuasive the Process Server's detailed explanation of the steps he took to affix the Notices to the Elevator Entrance. Further, after inspecting the lobby and elevator itself, the court notes that the Process Server accurately described the front door to the building, the light in the elevator, the size of the elevator, the distance between the front door of the building and the elevator, and the fact that once the elevator reaches the second floor, the door opens directly into the Elevator Entrance, without any other surroundings other than a door frame. The Process Server also meticulously described the manner in which he demarcates the date and time of service in the Worksheet, Logbook and affidavit of service. Accordingly, the court finds that the Process Server established that he posted the papers to the Elevator Entrance as he attested in the affidavit of service.
Inconsistencies in the Process Server's Testimony
Respondent raises the issue that there are various inconsistencies between the Process Server's testimony and the affidavit of service. The inconsistencies include the Process Server's testimony at hearing that he posted the papers in this case on September 6, 2017 at 7:07pm when the affidavit of service reflects that service was effectuated on September 5, 2017 at 7:11pm. However, Respondent's attorneys mischaracterize the Process Server's testimony by asserting that he "in effect, acknowledged that the purported time of service of process upon the Tenant was a fabrication and bore no reasonable relationship to the actual time when he allegedly conspicuously posted process." (Resp. p. 4).
This was not the case. Rather, the Process Server testified that he entered the time of service directly into the Worksheet when he arrived downstairs and exited the building. He explained, without hesitation, that prior to making the entry on the Worksheet he confirmed the time on his GPS application, provided by the DCA, and by consulting his watch. He then placed the time in his Logbook, and later his affidavit, which he copied from the Worksheet. Based on this credible testimony, the court finds that these documents are accurate representations of the time and date he effectuated service. Importantly, NY General Business Law 89-cc[2][c] requires that "the date and approximate time service was effected" must be stated in the affidavit of service. ( NYGBL 89-cc[2][c] [emphasis added] ). That a short period of time elapsed between the posting of the Notices on the door and and the Process Server exiting the building does not distort the time of service, which can be an approximation. Id.
The court also recognizes the principle articulated in ( Rowlan v. Brooklyn Jewish Hosp. , 100 AD2d 844, 845 [2nd Dept. 1984] ) that "[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." Furthermore, minor inconsistencies between an affidavit of service and process server's testimony do not divest the court of jurisdiction. (See Navarro v. Singh, 110 AD3d 497 [1st Dept 2013] ); ( Lefton v. Freedman, 163 AD2d 360 [2nd Dept 1990] ).
Accordingly, the minor inconsistencies in the Process Server's testimony, such as the four minute gap between 7:07pm and 7:11pm, and his confusion between September 5, 2017 and September 6, 2017 do not detract from his credible testimony at hearing, nor the accurate records he kept which are in evidence. The court therefore weighs the documentary evidence (Pet Ex. 2) and (Resp. Ex. A) in Petitioner's favor, against any discrepancies in the Process Server'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. (See e.g. Rowlan v. Brooklyn Jewish Hosp. , 100 AD2d at 845 ).
These details are as follows: the Process Server could not recall whether there was a staircase in the building, what the lobby looked like, that the Elevator Entrance was demarcated by a number, and that the elevator opened from right to left instead of left to right.
Elevator Entrance v. Stairwell Entrance
Respondent asserts that assuming arguendo the Process Server actually affixed the papers to the Elevator Entrance, per the affidavit of service, such service is improper because the Elevator Entrance is not the front door to the Premises. Respondent maintains that he uses the Stairwell Entrance as his front door, which is accessed by climbing up one flight of stairs. The staircase is located at the back corner of the lobby. Respondent argues that Petitioner knew, and was obligated to impart, this information to the Process Server prior to service because on previous occasions, the superintendent had accessed the premises by the Stairwell Entrance. Therefore, service could only have been properly effectuated by using the Stairwell Entrance.
It is well settled that due process requires the petitioner to provide "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." ( Jones v. Flowers , 547 US 220, 226 [2006] quoting Mullane v. Central Hanover Bank & Trust Co. , 339 US 306, 314 [1950] ); ( Bossuk v. Steinberg, 58 NY2d 916 [1983] ). For example, in (Matter of 72A Realty Assocs. v. New York City Envtl. Control Bd. , 275 AD2d 284, [1st Dept 2000] ), the court held that service must be made at a party's current address, if that address is known, and failure to serve at that address deprives the court of jurisdiction. (See also Alexander Smith Carpet v. Walter Arnold, Inc. , 94 AD2d 643 [1st Dept 1983] ). The issue here is whether service on the Elevator Entrance, rather than the Stairwell Entrance, was reasonably calculated to apprise the Respondent of the pendency of the proceeding. Id.
The facts here are nearly identical to the facts in ( 161 Williams Associates v. Coffee, 122 Misc 2d 37 [Civ Ct New York Co 1983] ). In Coffee, the court articulated that when resorting to conspicuous place service, the papers must be posted, "in a location, preferably the entrance door, which, in the reasonable opinion of the process server, is sufficiently obvious to the occupant so to be expected to be seen." Id at 39-40. In Coffee, the process server was also tasked with serving process in a building which consisted of loft apartments. The apartment could be accessed by two methods: through a door at the top of a stairway, or through an elevator door that led directly into the apartment. There, the court found that the process server properly posted the papers on the readily accessible elevator door, as opposed to the stairwell door used by the tenant as a front door, because "[t]he process server is not required to investigate the habits of the person to be served." Id. The court discerningly noted, "[a]n objective standard must be applied otherwise those who use unexpected methods of entrance and egress could avoid service altogether." Id. (See also Pentecost v. Santorelli, 2003 NY Slip Op 51178[U] [App Term 1st Dept] [conspicuous place service on locked exterior door to a staircase leading exclusively to tenant's apartment was proper as this was the point where the process server's progress was "arrested."] ). Notably, the affixed copy of the papers is not required to "actually end up in the hands of the tenant." (Hospitality Enterprises v. Fuego Rest. Corp., NYLJ 6/5/1980 p. 11 col. 4 [App Term 1st Dept] ).
After inspecting the subject building, the court recognizes that the elevator is located directly within eyesight as one enters the lobby to the building, however the stairwell is located beyond the elevator and not immediately visible. It was therefore reasonable for the Process Server to expect that he would reach the front door to the Premises by utilizing the elevator, which is the first visible means of reaching the second floor of the building. The court also notes that the button for the second floor of the building is accessible in the elevator and that once the elevator reaches the second floor of the building, the door to the Premises is exposed and demarcated with a "2." Accordingly, it was reasonable for the Process Server to believe that the Elevator Entrance is actually the front door to the Premises. Furthermore, since the stairs leading to the Stairwell Entrance were not visible when entering the building, it was reasonable for the Process Server to expect that the elevator was the only method of "entrance and egress" to the Premises. Coffee, supra. The testimony of Robert Mills, the process server who attempted service on Respondent prior to Mr. Green, corroborates this, as he too attempted service at the Elevator Entrance. Respondent's own testimony supports this as he acknowledged at hearing that he receives deliveries via the Elevator Entrance. Notably, RPAPL § 735 does not mandate that the papers must be affixed to the front door of a dwelling. (See also Coffee, at 39). Accordingly, the court rules that service on the Elevator Entrance was proper.
The fact that Respondent's witness, Mr. Mills, did not reference the elevator in his affidavit of service does not affect the reasonableness of the Process Server's use of the Elevator Entrance for posting as Respondent suggests. Particularly where Mr. Mills testified he attempted service at the Elevator Entrance.
Respondent argues that since the superintendent had used the Stairwell Entrance to access the Premises, and presumably knew that Respondent usually did the same, he was obligated, as the landlord's agent, to impart this information to the landlord. The landlord, in turn, was obligated to let the Process Server know that Respondent considered the Stairwell Entrance to be his front door so that service could have been reasonably calculated to apprise the Respondent of the pendency of the proceeding. This argument fails for a few reasons. First, Respondent testified at the hearing that he used both doors to exit and leave the Premises. While he utilized the Stairwell Entrance more frequently, and considered it to be his front door, he still used the Elevator Entrance for packages and to move large items in and out of the Premises. Indeed, Respondent testified that he received a package at the Elevator Entrance between September 7 and 13, 2017 as he is wont to do.
Moreover, Respondent never called the superintendent or a landlord's agent as a witness at the hearing, and never conclusively established that that the superintendent, or landlord, knew of his habit to use to the Stairwell Entrance, more often than the Elevator Entrance, to exit and leave the Premises. Even assuming arguendo that Respondent had established that the superintendent, or the landlord, conclusively knew that he habitually used the less visible and logical means of accessing the Premises from the stairwell and not the elevator, this information is not "vital" to service. Unlike the cases cited by Respondent, where the landlord knew that service, as effectuated, would never reach the tenants, here, Respondent actually used the Elevator Entrance and could have received service via the elevator door. See e.g. (60 West 109th St. Corp. v Taylor, 95 N.Y.S.2d 762 [Mun. Ct. Manh. 1950] [where landlord did not inform process server that tenant was no longer in possession of the premises, service made at the premises was improper] ); ( Ancott Realty, Inc. v. Gramercy Stuyvesant Independent Democrats, 127 Misc 2d 490 [Civ Ct New York County 1985] [landlord detrimentally neglected to inform the process server that attempts at service on tenant, a political club, should be made after business hours, when it was operational] ).
Similarly, both ( FPTK LLC v. Paradise Pillows Inc. , 9 Misc 3d 1125[A] [Civ Ct. Kings County 2005] ) and (JP Morgan Chase Bank v. Lilker, AD3d 1243 [2nd Dept 2017] ) involve clear violations of General Business Law § 13, which makes a party guilty of a misdemeanor if they procure process on a person on a Saturday, where the person does not labor on that day. In those cases, the courts found that the landlords had knowingly failed to inform the process servers that their tenants observed the Sabbath. Here, the Respondent has not established that Petitioner knew that Respondent utilized the Stairwell Entrance as the front door. Moreover, Petitioner's failure to impart this fact to the Process Server, would not rise to the level of a violation of the General Business Law as in FTPK LLC and Lilker, which also requires malicious intent.
The Color of the Door
Respondent maintains that the Process Server's description of the Elevator Entrance as "white" rather than "tan" is such an aberration that it discredits his entire testimony and renders his records defective. Indeed, the color of the door became such an issue at the hearing that the parties requested that the court inspect the door in order to make a definitive determination as to its color. However, the difference between these two colors is so insignificant, that even if the color is "tan" and not "white" it does not detract from the credible testimony of the Process Server.
For the sake of resolution the court notes that color of the door bears a likeness closest to one of the many paint samples from Benjamin Moore annexed to Petitioner's post-hearing brief as Exhibit A, entitled "White Sand" and enumerated as "OC-10."
Respondent's counsel highlights the fact that the Worksheet in evidence contains a description of the door that states "posted on tan/brown apartment door ... access by elevator" but that the word "tan/brown" is crossed out and replaced by "white." The Process Server testified that he made the change "[b]ecause the base color, instead of being too vague on it, white door would be better." This testimony enhances the Process Server's credibility as it reflects that he entered his description of the door on the Worksheet after some consideration. The court also notes that the Process Server properly crossed out the description of the door in accordance with statutory requirements, to replace the words "tan/brown" with "white." (See NYGBL 89-cc[1] ); and ( First Commercial Bank of Memphis, N.A. v. Ndiaye, 189 Misc 2d 523 [Sup Ct Queens County 2001] ).
Most importantly, the color of the Elevator Entrance is very difficult to determine while standing in the elevator. The elevator itself is fairly dark and the Elevator Entrance is merely illuminated by the red light of the elevator's "down arrow." Accordingly, the color of the door is distorted. Respondent's Exhibits D and L most accurately reflect the way the color of the Elevator Door is distorted, which was this court's experience on the day of the inspection. The door can be perceived as being either white or tan when viewed in the dark. The court therefore accepts the Process Server's description of the Elevator Entrance as "white" rather than "tan/brown" to be a credible representation of the color of the door.
The color can even be described as "grey," which Robert Mills indicated in an affidavit of service dated April 20, 2018 from a subsequent proceeding. (Resp. Ex. C).
DCA Requirements
Lastly, Respondent maintains that traverse should be sustained because the Process Server failed to comply with DCA regulations. He asserts that the Logbook fails to describe the area adjacent to the Elevator Entrance and does not provide the date that the affidavit of service was filed with the court. The court observed that when accessing the Elevator Entrance, there is no area adjacent to the door. The only area around the door consists of the elevator itself, which is entirely unremarkable, and the actual doorway. Accordingly, the Process Server's notation in the Logbook, "white Apt door, access by Elevator" (Pet. Ex. 2) complies with the DCA requirement that the Logbook must describe the area of service. (See 6 RCNY 2-233.) With respect to the Process Server's failure to indicate when the affidavit of service was filed the court, this minor issue does not warrant sustaining traverse. (See Landmark Capital Invs., Inc. v. Li-Shan Wang, 94 AD3d at 418 [1st Dept. 2012] ["[A]lthough the process server was under investigation for improper record keeping by the Department of Consumer, the relevant portions of the record support the finding that his version of facts was accurate" and traverse properly denied] ); (See also Navarro v. Singh, 110 AD3d 497 [1st Dept 2013] ); and (First Commercial Bank of Memphis, N.A. v. Ndiaye, 189 Misc 3d [Sup Ct Queens County 2001] ).
Accordingly, after hearing the court finds that the Process Server properly effectuated service upon the Respondent and traverse is denied. The proceeding is adjourned to November 5, 2018 in Part H Room 523 at 9:30 A.M. for all purposes, including Petitioner's discovery motion, which is hereby restored to the calendar.
The parties are directed to pick up their exhibits on or before the return date or they will be disposed of at the court's discretion pursuant to DRP-185.
This constitutes the decision and order of this Court.