Opinion
Index No. L&T 301234/20
05-17-2023
WILMINGTON TRUST, NATIONAL ASSOCIATION, Not in Its Individual Capacity, But Solely AS TRUSTEE FOR MFRA TRUST 2014-2, Petitioner, v. Neville WALCOTT a/k/a Neville A. Walcott, Gladys Walcott, Joann Woods, Tyree J. Randall, Arra Brown, Sai Woods, Ms. Brown, John Doe(s), Jane Doe(s), Respondents.
Richard Tracy, Esq., Friedman Vartolo LLP, 85 Broad Street, Suite 501, New York, NY 10004, Attorneys for Petitioner Samantha Lyons, Esq., Catholic Migration Services, 47-01 Queens Boulevard, Suite 203, Sunnyside, NY 11104, Attorneys for Respondent Neville Walcott
Richard Tracy, Esq., Friedman Vartolo LLP, 85 Broad Street, Suite 501, New York, NY 10004, Attorneys for Petitioner
Samantha Lyons, Esq., Catholic Migration Services, 47-01 Queens Boulevard, Suite 203, Sunnyside, NY 11104, Attorneys for Respondent Neville Walcott
Clinton J. Guthrie, J. PROCEDURAL HISTORY
This post-foreclosure holdover proceeding brought pursuant to RPAPL § 713(5) was filed in November 2020. After COVID-19 hardship declarations were filed by Neville Walcott and Gladys Walcott in November 2021, the proceeding was restored to Part D. Neville Walcott retained an attorney, and the attorney filed an answer on his behalf. The proceeding was transferred to Part X in October 2022 and subsequently scheduled for traverse and trial on March 30, 2023.
On March 30, 2023, the court conducted a traverse hearing on the service of the predicate notice to quit. Although Neville Walcott had raised a personal jurisdiction defense in his answer and personal jurisdiction is a "threshold issue" ( Elm Mgt. Corp. v. Sprung , 33 A.D.3d 753, 823 N.Y.S.2d 187 [2d Dept. 2006] ), the parties agreed that the traverse hearing would be limited to service of the predicate notice.
Service of a predicate notice to quit (with exhibition of a certified deed) is a requirement for maintaining a proceeding brought pursuant to RPAPL § 713(5). See Plotch v. Dellis , 60 Misc.3d 1, 2, 75 N.Y.S.3d 779 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2018].
TRAVERSE HEARING
Petitioner called S. Louis as its first witness. Mr. Louis testified that he is a process server and had been one for 25 years. He testified that he works as an independent contractor through Reliant Court Services, Inc. (hereinafter "Reliant").
Mr. Louis explained that Reliant maintains its records in a third-party server. When asked if he had access to the records maintained in the server, Mr. Louis testified that he can get a certified copy of the records. Mr. Louis testified that he is licensed to serve process and his current license with the NYC Department of Consumer and Worker Protection was admitted as petitioner's Exhibit 1.
When asked if he had served anything at the subject premises, Mr. Louis replied that he had. He confirmed that he had an affidavit of service for what he served at the subject premises. After Mr. Louis confirmed his signature and creation of the affidavits of service for the notice to quit, they were admitted (collectively) as petitioner's Exhibit 2.
Mr. Louis testified about his typical routine for serving papers. He testified that he records services in his logbook. The court admitted Pages 34-35 in Mr. Louis’ logbook as petitioner's Exhibit 3. Mr. Louis testified that the information in the logbook is entered the night of the service in question. He also testified that the information in the logbook correlates with the contents of the relevant affidavit of service. Mr. Louis next testified about taking a photograph through his GPS locator. He testified that the photos he takes are maintained on the third-party server. The court sustained an objection to a photograph that Mr. Louis testified was taken at the subject premises.
When asked about the specific service of the notice to quit herein, Mr. Louis testified that the John Doe who answered was "rambunctious" and "belligerent." He testified that the person did not identify himself.
On cross-examination, Mr. Louis was asked about his service procedures. He confirmed that if something was not included in his logbook, it was not served. He testified again about his entry of information into the third-party server and the maintenance of his logbook and the electronic records. When asked if there was a description of the door of the subject premises or the area adjacent to it, Mr. Louis confirmed that there was not. Mr. Louis also confirmed that the service of the predicate notice for this proceeding occurred on July 13, 2020, almost three (3) years before the hearing. When asked about the circumstances of the service on July 13, 2020, Mr. Louis remembered that the person he served "threatened to kill me." He recalled that the person was a young Black man. He stated that the subject premises is in his neighborhood, about 15 blocks away from his home.
On redirect, Mr. Louis testified that the information kept in the electronic records of the third-party server is the same as what is in his logbook. Finally, on recross, when asked why each respondent was listed twice in his logbook, he stated that he usually does "overkill" when there are a lot of copies of papers to be served.
Next, Jeewan Persaud testified for petitioner. Mr. Persaud testified that he is employed and that he manages foreclosed properties for the bank (Wilmington Trust). He testified that as part of his job, he visits properties every week and submits reports on a weekly basis. When asked about the subject premises, he confirmed that he had visited it. He testified that he encountered a person at the property who was skinny and about 5’5" to 5’8"; he stated that the person was "very arrogant." After his encounters with this person, Mr. Persaud stated that he stopped knocking on the door and would only do exterior reports thereafter. When asked what the person's relationship to the property was, he stated that the person told him that "his pops owned the house." When asked when he first started visiting the property, Mr. Persaud testified that it was late 2019 to early 2020. He recalled that he had it (the property) before March 2020, when the COVID pandemic began.
On cross-examination, Mr. Persaud was asked if he had seen the person he described "many times." He responded in the affirmative. When asked if he ever asked the person if he lived in the house (subject premises), he replied, "yes, he lives there." Petitioner rested (for the purposes of the traverse hearing) upon the conclusion of Mr. Persaud's testimony.
Respondent Neville Walcott was called as the sole witness for respondents. Mr. Walcott was asked what kind of dwelling he lived in. He testified that it was a one-family dwelling. When asked who lived there, he testified that he and his wife, Gladys, did. When asked if he had any children or grandchildren, Mr. Walcott replied no to both. Mr. Walcott also testified that his wife, Gladys, did not have children.
Mr. Walcott testified that only he and Gladys lived in the property in 2020. When asked if other relatives lived with them at the time, he answered that they did not. Upon being asked about the description of the person who was served with the notice to quit in the affidavit of service (petitioner's Exhibit 2), Mr. Walcott testified that no respondent matched the description. He further testified that in July 2020, only his wife's nurse visited the home, as it was during the pandemic and his wife was sick. He added that he was 73 years old.
When asked if he had ever received the 10-day notice to quit or a copy of the referee's deed, Mr. Walcott testified that he had not.
On cross-examination, Mr. Walcott was asked about Sai Woods, one of the named respondents. He testified that Mr. Woods was his wife's sister's son. He described him as 5’9", with brown skin and dreadlocks. When asked to confirm that he was never served with the notice to quit, Mr. Walcott testified that he "saw nothing." Mr. Walcott also confirmed that he and his wife, Gladys, were former owners of the subject premises, and had lost the property in foreclosure. When asked what they thought would happen after the foreclosure, Mr. Walcott testified that he believed that they would be able to stay.
Finally, on redirect, Mr. Walcott was asked if Sai Woods lived with him. He replied, "no, never." Upon the close of Mr. Walcott's testimony, the hearing concluded.
DISCUSSION & CONCLUSION
At a traverse hearing on service of a predicate notice, the petitioner bears the burden of proving proper service. See Mautner-Glick Corp. v. Glazer , 148 A.D.3d 515, 516, 48 N.Y.S.3d 587 [1st Dept. 2017] ; Trupia v. Davila , 2009 N.Y. Misc. LEXIS 2483 [Civ. Ct., Kings County, May 20, 2009, Index No. 90905/08]. Here, Mr. Louis testified to service of the notice to quit upon an individual who was described but not named. The affidavits of service memorialize substitute service upon a person referred to as John Doe, described as: male, brown skin, age 20, 5’5" to 5’10", and 150-180 lbs. Under RPAPL § 713, a ten-day notice to quit must be served "in the manner prescribed in section 735 [of the RPAPL]." Pursuant to RPAPL § 735(1), service may be made "by delivering to and leaving personally with a person of suitable age and discretion who resides at or is employed at the property sought to be recovered, a copy of the [pleadings][.]" The court finds, upon due consideration of the testimony and evidence admitted at the traverse hearing, that petitioner did not establish by a preponderance of the evidence that its process server served the notice to quit and certified referee's deed in accordance with RPAPL § 735. While the process server, Mr. Louis, credibly testified about his service procedures, he did not offer any testimony about whether the person he served was a person of suitable age and discretion who resided at the subject premises at the time of the service. Mr. Persaud testified about visiting the property and having interactions with a person who partially matched the description of the person served. However, he did not testify about whether he visited and saw the person in July 2020. Meanwhile, Mr. Walcott gave specific testimony about who was living in the subject premises and who would visit in July 2020. The court found the details of this testimony to be credible. Mr. Walcott testified that only he and his wife, Gladys, were residing in the premises in July 2020, and that only his wife's nurse visited because of his wife's sickness and the risk posed by COVID. Petitioner did not put forth any rebuttal witness to challenge Mr. Walcott's specific testimony about who was residing in the subject premises at the time of service.
The court notes that the requirement to serve a person "who resides at or is employed at the property" for substitute service under RPAPL § 735 is different from CPLR § 308(2), which merely requires delivery upon "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[.]" See e.g. Bank of NY v. Espejo , 92 A.D.3d 707, 708, 939 N.Y.S.2d 105 [2d Dept. 2012] ["Valid service pursuant to CPLR 308(2) may be made by delivery of the summons and complaint to a person of suitable age and discretion who answers the door at a defendant's residence, but is not a resident of the subject property."] [Internal citations omitted].
While Mr. Walcott did confirm that Sai Woods was a relative who partially matched the description of the person served, he unequivocally denied that Mr. Woods ever resided in the subject premises. Additionally, notwithstanding the fact that Mr. Woods was named as a respondent, neither of petitioner's witnesses testified that Mr. Woods was the person who was served. By naming Mr. Woods as a respondent, it is presumed that petitioner was aware of his identity. Cf. CPLR § 1024 ; Wilmington Trust, N.A. v. Shasho , 197 A.D.3d 534, 536, 152 N.Y.S.3d 695 [2d Dept. 2021] ; see also Ancott Realty, Inc. v. Gramercy Stuyvesant Independent Democrats , 127 Misc.2d 490, 491, 486 N.Y.S.2d 672 [Civ. Ct., N.Y. County 1985] [Information relevant to the service shall be conveyed to the process server prior to service]. Therefore, the court finds that petitioner did not establish that Sai Woods or any other resident of the subject premises was personally served with the notice to quit. Accordingly, traverse is sustained. As proper service of a required predicate notice is a condition precedent to the maintenance of a summary eviction proceeding under Article 7 of the RPAPL, petitioner's failure to establish proper service of the notice to quit herein requires dismissal of the petition without prejudice. See Mautner-Glick Corp. , 148 A.D.3d at 515-516, 48 N.Y.S.3d 587 ; 1646 Union, LLC v. Simpson , 62 Misc.3d 142[A], 2019 N.Y. Slip Op. 50089[U], 2019 WL 309986 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2019] ; see also Plotch , 60 Misc.3d at 2, 75 N.Y.S.3d 779. The clerk shall issue a judgment dismissing the petition without prejudice in accordance with this Decision/Order. Respondent's counterclaim is severed without prejudice.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.