Does a Process Server Have to Testify at an Inquest in NYC Housing Court?

The law states that a petitioner in a landlord tenant case cannot rely on a process server's affidavit because rules of evidence apply in New York City Housing Court and an affidavit is generally considered hearsay. But courts usually apply the law differently than as written and take judicial notice of affidavits of service that are in the court’s own file.

Rules of Evidence Apply in NYC Housing Court

Subsection (h) of section 208.43 (Rules of the housing part):

(h) Rules of evidence shall apply in all actions and proceedings in the housing part. The order of proof shall be determined by the court.

Cobble Hillbillies, LLC v. Interior Design, 782 N.Y.S.2d 600 (Civ. Ct. City of NY, Kings County 2004):

Since an inquest is a hearing, albeit a one-sided one, the rules of evidence apply, and petitioner must prove each element of his prima facie case in order to prevail. Accordingly, since petitioner offered the process server's affidavit of service into evidence to establish the truth of the statements in the document, he must show that the affidavit comes within an exception to the hearsay rule (Prince, Richardson on Evidence § 8-101 [Farrell 11th ed]).

Generally, Courts Apply the Law Differently than as Written

Despite the court rule and the case cited, it seems that the law is generally applied differently than as written. At an inquest in New York City Housing Court, judges generally take judicial notice of affidavits of service that are in the court’s own file. For support of the law as applied, I can point to:

• First-hand experience of a colleague that recently did an inquest in Queens Housing Court.
• The statement of a lawyer on the New York State Bar Association’s Real Property listserv: “I have never had to have a process server testify at an inquest. The process server should not have to testify unless the tenant has appeared and challenged service with detailed facts disputing the facts in the affidavit of service.”
• Treiman’s Trial Manual Version 34.03 (2006), which states in relevant part:
  • In sample inquest questions for a “Holdover Proceeding Based On Nuicance”: “24. I ask the Court to take judicial notice of the notice of termiantion and affidavit of service in the Court’s own file."
  • In sample inquest questions for a “Holdover Proceeding Based Upon the Breach of a Substantial Obligation of a Lease or Tenancy”: “24. I ask the Court ot take judicial notice of the notice to cure and affidavit of service in the Court’s own file."