Opinion
2014-1249 K C
12-15-2015
502 Avenue P Corp., Respondent, v. AM & R Auto Repair Shop, Appellant.
PRESENT: :
Consolidated appeals from orders of the Civil Court of the City of New York, Kings County, dated May 12, 2014 (Robin Kelly Sheares, J.) and August 19, 2014 (Pamela L. Fisher, J.). The order dated May 12, 2014 denied tenant's motion to vacate a default final judgment and dismiss the petition, and granted landlord's cross motion for leave to amend the caption, final judgment and warrant, in a commercial nonpayment summary proceeding. The order dated August 19, 2014 denied tenant's motion to fix an undertaking pursuant to CPLR 5519 (a) (6).
ORDERED that the order dated May 12, 2014 is reversed, without costs, and the matter is remitted to the Civil Court for a new determination of tenant's motion and landlord's cross motion, following a traverse hearing; and it is further,
ORDERED that the appeal from the order dated August 19, 2014 is dismissed as moot.
After tenant failed to appear or answer in this commercial nonpayment proceeding, a default final judgment of possession was entered on February 19, 2014 awarding possession to landlord, and a warrant was issued to the marshal on February 20, 2014. In April 2014, tenant moved to vacate the default final judgment and dismiss the petition on the ground, among others, that the Civil Court had failed to obtain personal jurisdiction over tenant because tenant had never been served with the notice of petition and petition. Landlord cross-moved for an order "amending the petition, caption, judgment and warrant to reflect respondent's name as AM & R Auto Repair Shop, Inc. instead of AM & R Auto Repair Shop." By order dated May 12, 2014, the Civil Court (Robin Kelly Sheares, J.) denied tenant's motion and granted landlord's cross motion. Thereafter, in August 2014, tenant moved to fix an undertaking pursuant to CPLR 5519 (a) (6). By order dated August 19, 2014, the Civil Court (Pamela L. Fisher, J.) denied the motion.
While the process server's affidavit, which alleges service upon tenant, "a domestic corp[oration]," by service upon "a person of suitable age and discretion who was employed at the premises," constitutes prima facie evidence of proper service (see Parker v Top Homes, Inc., 58 AD3d 817 [2009]; 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d 845 [2008]; NYCTL 1998-1 Trust v Rabinowitz, 7 AD3d 459 [2004]), tenant's affidavit in support of its motion to vacate the default final judgment and dismiss the petition contained a nonconclusory denial of service which was sufficient to rebut the process server's affidavit and raise an issue of fact necessitating a traverse hearing (see 25 E. 26th St. Owners Corp. v Beaton, 50 AD3d 845; NYCTL 1998-1 Trust v Rabinowitz, 7 AD3d 459; Sando Realty Corp. v Aris, 209 AD2d 682 [1991]). Consequently, the order dated May 12, 2014 is reversed and the matter is remitted to the Civil Court for a new determination of tenant's motion and landlord's cross motion, following a traverse hearing.
The appeal from the order dated August 19, 2014 denying tenant's motion to fix an undertaking in order to obtain an automatic stay pending appeal (see CPLR 5519 [a] [6]) has been rendered moot by the determination of the appeal.
Solomon, J.P., Weston and Elliot, JJ., concur.
Decision Date: December 15, 2015