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TRANSCRIPT #19

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-Validity of CPLR 308(2) substituted service via delivery to building concierge and follow-up mailing to defendant.
-Process server had no independent recollection of service and relied upon his Affidavit of Service and his custom and practice.
-Process server testified, based on Affidavit of Service, that he left papers with concierge of defendant’s building.
-Affidavit of Service did not state that concierge denied process server access to defendant’s apartment.
-Process server testified regarding his policy and procedure for serving a defendant who resides in a doorman or concierge building.
-Process server testified that it was his practice not to deliver papers to a concierge without first seeking permission to go up to a defendant’s apartment.
-Process Server testified that if, as was the case her, his Affidavit of Service stated that he left the papers with the concierge, he was either denied access to go to defendant’s apartment or defendant authorized the doorman/concierge by phone to accept the papers. Since his Affidavit of Service stated that he left the papers with the concierge, he was denied access to defendant’s apartment.
-Plaintiff subpoenaed defendant to testify regarding role of concierge in controlling access  to his apartment; however, defendant did not appear or present any evidence.
-Building manager, subpoenaed by plaintiff, testified that building policy prohibited visitors from passing the lobby unless the concierge called the unit owner/resident and got permission to allow access to the apartment.

-Process server (direct examination; cross-examination)
-Building manager subpoenaed by plaintiff (direct examination; cross-examination)