Papers Numbered Defendant’s Order to Show Cause 1 Plaintiff’s Opposition, Exhibits Attached 2 Defendant’s Supplemental Affidavit, Exhibits Attached 3 Defendant’s Supplemental Affirmation 4 Plaintiff’s Supplemental Opposition 5 DECISION AND ORDER Upon the foregoing cited papers, the Decision/Order on the motions is as follows: DECISION I: Procedural History This action was brought by Auto Connection, Inc. (hereinafter, Plaintiff) against Aatika A. Pristell and Jason L. Martin (hereinafter, Defendant) with the filing of a Summons and Complaint on or about February 11, 2020. On October 28, 2021, after failing to interpose an answer, a default judgment was entered in favor of Plaintiff and against Defendants in the amount of 6,050.27. On July 19, 2023, Defendant Pristell filed an Order to Show Cause to vacate the default judgment. Your Honor signed the Order to Show Cause and put the matter on for August 2, 2023. The matter was adjourned to September 20, 2023. Prior to that court date, Plaintiff filed opposition to Defendant’s Order to Show Cause on August 8, 2023. On September 1, 2023, Defendant filed supplemental papers in support of the Order to Show Cause. On September 8, 2023, Plaintiff filed supplemental opposition to the Order to Show Cause. The matter appeared before Your Honor on September 20, 2023 and was taken on submission. Upon review of the aforementioned motions, the Court ordered a Traverse Hearing to determine the issue of personal jurisdiction over Defendant Pristell. On October 16, 2023, the parties appeared before Your Honor for said Traverse Hearing. Defendant Martin has never appeared in the matter and thus, the default judgment against him shall remain in effect. II-A: Plaintiff’s Case Process Server, Hashem Hussein, testified as the sole witness for the Plaintiff that he has worked as a Process Server for approximately seven years. He testified that while he has no independent recollection of the alleged service performed in this case, he could look at his logbook and affidavit of service to remember the specific details. Both documents were entered into evidence. Mr. Hussein explained that he fills out these documents subsequent to the delivery of the summons and complaint. Mr. Hussein testified that on March 13, 2020 at 6:00 AM, he appeared at 279 Heberton Avenue, Apt 2, Staten Island, New York. There he delivered the summons and complaint to a white male with black hair named “Julian Pristell”, an individual that appeared to be 29 years old weighing approximately 205 pounds and standing approximately 6 feet tall. II-B: Defendant’s Case Defendant testified as the sole witness on her own behalf. Defendant testified that on the date of the alleged service, she resided at the subject address, 279 Heberton Avenue, Apt 2, Staten Island, New York with her children. Defendant provided physical descriptions of her children and explained that none of the children matched the individual described by the Process Server that he allegedly served. Specifically, she stated that her children, all under 18 years of age at the time, all have dark skin and the tallest was 5’2″ tall. In addition. Defendant explained that her home was armed with a doorbell camera for safety and that she did not receive any notifications of anyone coming to the door that day. Defendant maintains that she did not receive service personally or by mail. Furthermore, as Defendant moved to a new address shortly after the alleged service, she testified that she did not receive any mailing in the bulk that was forwarded to her at the new address. III: Decision The Court finds that Plaintiff failed to meet its burden to prove proper service and therefore, the Complaint is hereby dismissed. The burden of proving whether personal jurisdiction was acquired over a defendant rests with a plaintiff. Absent sworn specific factual allegations to the contrary to refute it, the process server’s affidavit of service constitutes a rebuttable prima facie evidence of proper service. See Federal Natl. Mtge. Assn. v. Castoldi, 187 A.D.3d 988, 989 (2nd Dept 2020); Nationstar Mtge., LLC v. Eihnorn, 185 A.D.3d 945, 946 (2d. Dept 2020). An evidentiary traverse hearing to determine the validity of service of process is required when a defendant asserts specific and detailed facts to rebut the statements in the process server’s affidavit. OneWest Bank FSB v. Perla, 200 A.D.3d 1052, 2055 (2d. Dept 2021). Pursuant to CPLR §2103(a), service of process can be performed, except where otherwise prescribed by law or court order, by any person that is not a party to the action that is 18 years or older. CPLR §308 (2) states in sum and substance that personal service upon a natural person shall be made 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 subsequently mailing the summons by first class mail. Ineffective service of process renders all subsequent proceedings a nullity. Everbank v. Kelly, 203 A.D.3d 138, 143 (2d. Dep’t 2022). The law is generous as to who can serve process in a civil action. However, for those who earn a living serving process, the law establishes several requirements. First, all Process Servers engaging in service of process on five or more occasions over the course of one year must be licensed by the NYC Department of Consumer Affairs. New York City Code §20-403(a); New York City Code §20-404(a). Furthermore, when called upon to testify at a Traverse Hearing, Process Servers are required to bring all records in their possession relating to the service in that matter, including their process server license. 22 NYCRR §208.29. These records include but, are not limited to their license, logbook, and GPS records. NY CLS Gen Bus §89-cc; 6 RCNY 2-233b. Historically these rules were designed to prevent the pitfalls of dishonest service practices. Nevertheless, service by an unlicensed process server does not require immediate dismissal so long as the service was otherwise performed properly in accordance with the CPLR. Feierstein v. Mullan, 120 Misc.2d 574, 575 (App. Term 1st Dept. 1983). In this case, at no point during his testimony did Plaintiff’s witness testify that he was a licensed process server. Plaintiff’s attorney made no inquiry into any information regarding the witness’s license. There is no evidence as to when or where he obtained that license, or even the license number. Moreover, he did not testify as to whether he had a Process Server license at the time of the alleged service. Mr. Hussein did not produce that license in court and Plaintiff did not enter any license into evidence. The only testimony before the Court is that Mr. Hussein was a Process Server for seven years. As stated above, Mr. Hussein and the Plaintiff are required to create, maintain, and produce those documents before the Court. Aside from the logbook and affidavit of service, there was no mention of any other documentation, such as GPS records, brought before the Court. While there is no steadfast rule that the failure to produce these documents automatically renders service invalid, the failure tends to reflect poorly on Mr. Hussein’s credibility. Any implicit benefit given to the testimony of a licensed Process Server is aborted when that Process Server does not demonstrate that he followed all of the applicable rules and procedures. For example, as seen in Mr. Hussein’s logbook, his corrections to the zip codes for most of his entries fall out of compliance with NY CLS Gen Bus §89-cc, requiring a single straight line to be drawn through the error, in that he obscures the numbers rather than draw the line through the item. As the law allows any non-party over the age of 18 to serve process, the Court will look at Mr. Hussein’s testimony as that of a lay-person. Thus, his testimony is compared and contrasted to that of the Defendant. Mr. Hussein’s testimony that he appeared on the alleged date of service, knocked on the door, and served a white male is refuted in several ways. First, Defendant testified that she was home at that time at the location of the alleged service and that her home is equipped with a doorbell security camera. She also testifies that due to circumstances in her personal life, she has a heightened sense of awareness of individuals coming to her home. She maintains that at no point did anyone, including Mr. Hussein, visit her home on that day. While the Court cannot be certain of the circumstances regarding his inability to follow the various legal requirements of his profession, Mr. Hussein does not convince the Court that he followed the proper procedures as he indicated. Given Mr. Hussein’s apparent inability to follow the rules and regulations that are incumbent upon process servers, the Court does not believe that his testimony outweighs that of the Defendant. Thus, Plaintiff has failed to meet its burden of proving jurisdiction. IV: Conclusion Based on the foregoing: As improper service is a jurisdictional defect, the Court hereby finds that jurisdiction was not obtained over the Defendant and that all subsequent proceedings are null and void. All filed motions are dismissed as moot. Accordingly, Plaintiff’s complaint is hereby dismissed. ORDERED: The Default Judgment entered against Defendant Pristell is hereby vacated and case is immediately restored to the trial calendar. ORDERED: This matter is hereby dismissed. ORDERED: All liens, judgments, and/or wage garnishments are lifted immediately and any funds garnished from Defendant Pristell are to be returned forthwith to Defendant Pristell within 60 days of this Order. Failure to adhere to this Order may result in Contempt. ORDERED: This decision shall have no bearing on any judgments, liens, and/or garnishments held against Defendant Martin. This constitutes the Final Decision and Order of the Court. Dated: October 23, 2023
