Clearview 1719, LLC v Vega
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: RIOS, J.P., PESCE and ALIOTTA, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Oymin Chin, J.), dated November 30, 2010. The order denied tenant's motion for leave to reargue or renew her prior motion to vacate a default final judgment in a nonpayment summary proceeding.
ORDERED that so much of the appeal as is from the portion of the order that denied the branch of tenant's motion seeking leave to reargue is dismissed as no appeal lies from an order denying reargument (see Latopolski v Rudge, 35 AD3d 390 ); and it is further,
ORDERED that the order, insofar as reviewed, is affirmed, without costs.
On October 22, 2010, at a traverse hearing on tenant's motion to vacate a default final judgment of possession in this nonpayment summary proceeding, the process server testified that, pursuant to his retirement, he had surrendered his log books pertaining to the period of service at issue to the Department of Consumer Affairs (DCA). By order dated October 22, 2010, the Civil Court denied tenant's motion, concluding, among other things, that the process server had satisfactorily accounted for his inability to produce the log books and had otherwise testified credibly as to his personal service on tenant of the notice of petition and petition.
Tenant moved for leave to reargue or renew her prior motion. In support thereof, her attorney asserted that, on October 18, 2010, in anticipation of the traverse hearing, he had submitted a Freedom of Information Law request to the DCA seeking "[the] entire license file including license application, complaint history and/or resolutions, violations, and disciplinary actions" of the process server. Tenant's attorney did not receive a response from the DCA prior to the traverse hearing and made no motion for an adjournment in order to obtain the records sought. Several days after the hearing, counsel received a response from the DCA which counsel construed to indicate that the relevant log books had been requested by the DCA and that the log books could not be located. On this basis, counsel argued that the process server's retirement had resulted from a settlement of charges of failing to maintain proper records, and that the process server, asked to submit the relevant log books to the DCA, had elected to retain his records and retire rather than submit them for examination. By order dated November 30, 3010, the Civil Court denied both branches of the motion, in the case of renewal, on the ground that tenant had failed to demonstrate that the information was not available at the time of the hearing (see CPLR 2221 [e]).
On appeal, tenant argues that, in light of the new evidence, she should have been granted leave to renew and, upon renewal, the default final judgment vacated, given the process server's false account of the disposition of the log books, which failure should not have been excused. We disagree and affirm.
While log books are an important resource for the cross-examination of a process server (see Uniform Rules for New York City Civil Court [22 NYCRR] § 208.29; General Business Law § 89-cc; Hudson House v Gabriel, 195 Misc 2d 453, 454 [App Term, 2d & 11th Jud Dists 2002]), a process server's failure to produce the logs, where satisfactorily explained, is not fatal to proof of service (e.g. Woods v M.B.D. Community Hous. Corp., 90 AD3d 430 ; Korea Exch. Bank v Yung Hyo Kim, 32 AD3d 690, 691 ; Practice Mgt. Assoc. v Bambara, 208 AD2d 912, 913 ; see also AMB Fund III NY III & IV, LLC v WWTL Logistics, Inc., 35 Misc 3d 8 [App Term, 2d, 11th & 13th Jud Dists 2012]).
The process server testified that he had surrendered the relevant log books to the DCA, against which, in support of the renewal motion, tenant submitted an unsworn e-mail exchange between counsel and a DCA official which purports to confirm that the process server surrendered his log books and other documentation in relation to a 2009 DCA investigation of the process server's maintenance of records, and that the log books were returned to the process server on August 25, 2009. Other communications indicated that the process server was asked by DCA to submit the logs created in 2010, which covered the period of time involved in the service at issue, and that those logs could not be located in the DCA files. Tenant made no further inquiry of the DCA with respect to whether the DCA had ever received the 2010 log books or a declaration from DCA as to the significance of their failure to locate the books. We find this proof to be insufficient to support tenant's claim that the process ...