Opinion
Docket No. LT-178/2023
07-11-2023
BSD Realty Estates LLC, Petitioner, v. Jessica Moran, JOHN DOE, and JANE DOE, Respondents.
Matthew T. Bennett III, Esq. Johnson Foley & Cirigliano, P.C. Attorneys for Petitioner Legal Services of the Hudson Valley Attention: Brett Broge, Esq. Attorneys for Respondents
Unpublished Opinion
Matthew T. Bennett III, Esq.
Johnson Foley & Cirigliano, P.C.
Attorneys for Petitioner
Legal Services of the Hudson Valley
Attention: Brett Broge, Esq.
Attorneys for Respondents
Richard J. Guertin, J.
INTRODUCTION
This is a holdover summary proceeding to recover possession of real property located at 352 North Street, Apt. 1, Middletown, New York 10940 ("the Property") based on the purported service of a ninety day notice of non-renewal of a lease pursuant to RPL § 226-c ("Termination Notice") and the failure of the Respondents to vacate the Property. The Petitioner, by counsel, filed a Notice of Petition and Petition with the Court on March 10, 2023, with a return date set for April 18, 2023. On April 18, 2023, the Petitioner appeared in Court by Matthew T. Bennett III, Esq. ("Attorney Bennett"), and the Respondent, Jessica Moran ("Moran"), appeared that day without counsel but requested an adjournment to seek counsel. Moran at that time admitted that she received the Notice of Petition and Petition by mail but stated there was no "Miguel" at the dwelling. This action was adjourned to May 2, 2023 as requested by Moran. On May 2, 2023, the Petitioner again appeared by Attorney Bennett, and Moran appeared with Brett Broge, Esq., Staff Attorney with Legal Services of the Hudson Valley, who handed up a Notice of Motion to Dismiss with accompanying papers. The Court directed the Petitioner to file and serve any response to the motion by May 23, 2023, and any reply from or on behalf of Moran was to be filed and served by May 30, 2023, at which time the motion would be deemed fully submitted. The Court has received all papers from the parties, the motion has been fully submitted, and it is now ready for decision.
Although the Notice of Petition and Petition identify the Property as 352 North Street, Apt. 1, Middletown, NY 10940, the actual dwelling of the Respondent, Jessica Moran, is 352 North Street, Apt. 2, Middletown, NY 10940.
The Petitioner claims the Respondents were properly served the Notice of Petition and Petition by substitute service on "Miguel" at the Property. This issue will be discussed below.
The Court read the following papers on the motion:
Notice of Motion to Dismiss dated May 1, 2023 1
Attorney Affirmation with exhibits by Benjamin Herskovitz, Esq. ("Herskovitz Affirmation") 2
Affidavit by Jessica Moran ("Moran Affidavit") 3
Affirmation in Opposition with exhibits by Matthew T. Bennett III ("Bennett Affirmation") 4
Affidavit in Opposition by Murdechai Kellner ("Kellner Affidavit") 5
Respondent's Reply Memorandum of Law ("Reply Memorandum") 6
THE PARTIES' ARGUMENTS
The Respondents, through counsel, move to dismiss the Petition based on the following: 1) the Petitioner failed to properly serve the Notice of Petition and Petition as required by RPAPL § 735 (1); 2) the Petitioner incorrectly listed Moran's address in both the Termination Notice and the Petition; 3) the Petitioner waived the Termination Notice by accepting rent for months between the date of termination and the commencement of this action; and 4) the Petitioner failed to disclose the regulatory status of the Property (in that Moran received Section 8 assistance) and failed to show service of the necessary papers on the Section 8 administrator contrary to the requirements of RPAPL § 741. The Court will summarize the Respondents' arguments and the Petitioner's responses below.
The Respondents, through the Herskovitz Affirmation and the Moran Affidavit, assert that the Petitioner, in the Termination Notice, the Notice of Petition, and the Petition, listed the address the Petitioner is trying to recover as "352 North Street, Apartment 1, Middletown, NY." Moran's address, however, actually is 352 North Street, Apartment 2, Middletown, NY (Moran Affidavit, paragraph 2). Because the Termination Notice, the Notice of Petition, and the Petition all refer to the wrong address, the Respondents argue the papers underlying this action do not properly describe the property sought to be recovered by the Petitioner, and the Petition should be dismissed.
The listing of the wrong address for Moran also impacted service of the Termination Notice and the Notice of Petition and Petition, according to the Respondents' papers. For example, the Affidavit of Service of the Termination Notice shows it was affixed to the entrance door at Apartment 1 at 352 North Street, Middletown, NY and thereafter mailed to the same Apartment 1 address. With respect to the service of the Notice of Petition and Petition, the Affidavit of Service of the Notice of Petition and Petition claims that it was served by substitute service on Moran through delivery of the papers to someone named "Miguel" who was found at 352 North Street, Apartment 1, Middletown, NY, and the papers thereafter were mailed to the Apartment 1 address. According to the Moran Affidavit, however, she does not know the individuals who live in Apartment 1, she doesn't know anyone in the building named "Miguel," there is no one named "Miguel" in her household, and no one named "Miguel" visited her apartment in and around the time of the purported service of the Notice of Petition and Petition (Moran Affidavit, paragraphs 3, 4, 5, 6, and 7).
The Herskovitz Affirmation and the Moran Affidavit show that Moran receives Section 8 assistance, administered by the Pathstone Corporation, and Moran's entire rent is paid by the Section 8 program through Pathstone. According to a conversation between Moran and her Pathstone caseworker, the Petitioner received rent money from Pathstone for February, March, and April 2023 (Moran Affidavit, paragraphs 8, 9, and 10), after the purported termination date of the lease as set forth in the Termination Notice and prior to the purported service of the Notice of Petition and Petition (Herskovitz Affirmation, paragraph 39). It is also claimed the Petitioner did not return the rent money paid for February, March, and April 2023 and, as a result, waived its right to proceed under the Termination Notice (Herskovitz Affirmation, paragraphs 40 and 41; Moran Affidavit, paragraphs 10 and 11). The Respondents further argue this action should be dismissed because the Petition made no reference to Moran's Section 8 status and the Petitioner failed to serve the Termination Notice, the Notice of Petition, and the Petition on Pathstone, the Section 8 administrator, as required by RPAPL § 741 and federal regulations.
In response to the Respondents' papers, the Petitioner, through the Bennett Affirmation and the Kellner Affidavit, argues that service of both the Termination Notice and the Notice of Petition and Petition were proper under CPLR § 308. In particular, the Petitioner claims that the holdings in U.S. Bank Nat'l Ass'n v Olatunji (189 A.D.3d 494 [1st Dept 2020] [single family house with unascertainable, separate basement apartment]) and/or Johnson v Motyl (202 A.D.2d 477 [2d Dept 1994]) [personal injury action; summons and complaint delivered to downstairs neighbor; evidentiary hearing required to determine if service was proper]) would allow substituted service of the Notice of Petition and Petition on "Miguel" because the building at 352 North Street, Middletown, NY "is a multifamily dwelling, [and] it only has four apartments. It also has several common areas including a shared ground floor entrance and hallways" (Bennett Affirmation, paragraph 16; see Kellner Affidavit, paragraphs 3 and 4). The Petitioner also claims that because "Moran has appeared at every court date required of her" and "admitted to being aware of the proceedings," there is no need for an evidentiary hearing, and" [d]espite 'substitute service' [of the Notice of Petition and Petition] being made at the incorrect apartment within a multifamily dwelling Moran was not harmed" (emphasis supplied) (Bennett Affirmation, paragraphs 21, 22, and 23).
Significantly, the Petitioner's papers do not dispute the fact that the wrong apartment was listed in the Termination Notice and the Notice of Petition and Petition. The Petitioner's papers also do not dispute the fact that service of the Termination Notice and the Notice of Petition and Petition were made at the incorrect apartment. See generally Bennett Affirmation, paragraphs 23, 24, 27, 29, 30, and 31. The Kellner Affidavit does not discuss the apartment identification issue at all and does not state that Moran is wrong in claiming she lives at Apartment 2, not Apartment 1.
The Bennett Affirmation claims that although the reference to Apartment 1 instead of Apartment 2 in the Termination Notice and the Notice of Petition and Petition was a mistake, the Court could use discretion under CPLR § 2001 to allow the Petitioner to correct the mistake or to disregard the mistake "due to the lack of prejudice to Moran" (Bennett Affirmation, paragraph 31).
With respect to the Petitioner's acceptance of rent for February, March, and April 2023, the Petitioner argues that the rent checks were unsolicited and also claims that although the checks weren't returned, they were never cashed. As a result, there was no waiver of the Termination Notice (Bennett Affirmation, paragraphs 37 and 38; Kellner Affidavit, paragraph 9).
Finally, with respect to whether Pathstone (the Section 8 administrator here) was included in or served with the appropriate papers in this action, the Bennett Affirmation notes that a copy of the Notice of Petition and Petition was served on Pathstone (Bennett Affirmation, paragraph 44, referencing Exhibit 4, attached). In addition, if Pathstone was required to be referenced in the Termination Notice and the Notice of Petition and Petition, the Petitioner argues the Petitioner should be allowed to amend those documents and re-serve them on Pathstone (Bennett Affirmation, paragraph 47).
The Respondents' Reply Memorandum, in addressing the service of the Termination Notice and the Notice of Petition and Petition, distinguishes U.S. Bank Nat'l Ass'n v Olatunji by noting that the apartment building at issue in this action is not a single family residence with an unascertainable basement apartment but a multifamily dwelling with common areas such as a ground floor entrance and hallways. The Respondents' Reply Memorandum also distinguishes Johnson v Motyl by noting that the cases cited in Johnson (which, apparently, convinced the Johnson court to schedule an evidentiary hearing) involved substitute service on an apartment building doorman who prevented access to the actual apartment, and a home in which the particular defendant's unit was not identifiable and was generally inaccessible to the process server (Reply Memorandum at 2-3). The Reply Memorandum also noted that "[t]he reason that the process server served the papers on Apartment 1, rather than Apartment 2, in this matter is not difficult to surmise. There were no barriers that thwarted the process server's attempt to reach the Respondent's door at Apartment 2, rather all of Petitioner's papers were addressed to Apartment 1" (Reply Memorandum at 3).
The Reply Memorandum also notes that the statute governing service of papers in this case is not CPLR § 308 but, rather, RPAPL § 735. Section 735 (1) allows substitute service of a notice of petition and petition but requires delivery to and leaving a notice of petition and petition "personally with a person of suitable age and discretion who resides... at the property sought to be recovered... if upon reasonable application admittance can be obtained and such person found who will receive it" (Reply Memorandum at 3). The Respondents point out that the Petitioner admitted service purportedly was effected by substituted service at Apartment 1 and not Moran's residence at Apartment 2. The Reply Memorandum also disagrees with the Petitioner's contention that because Moran had actual notice of this action and showed up in court, Moran was not prejudiced by the defective service and cites various cases for the proposition that the requirements for actual service cannot be avoided even if a party admits receipt of papers such as a notice of petition and petition (Reply Memorandum at 4).
RPAPL § 735 addresses the service of a notice of petition and petition. The requirements for a landlord to terminate a residential tenancy are contained in RPL § 226-c. That section requires between thirty to ninety days written notice to the tenant (depending on the length of the tenancy), but it does not specify how that notice is to be delivered or served.
If service has been made on a person of suitable age and discretion, Section 735 (1) (a) also requires that a copy of a notice of petition and petition, if intended for a "natural person," must be mailed by both registered or certified mail and by regular first class mail "at the property sought to be recovered."
The Reply Memorandum also claims (at 5-6) that a predicate notice or a mistake in a notice of petition and petition cannot be corrected or amended but requires dismissal of the proceeding, and CPLR § 2001 is inapplicable to this action.
DISCUSSION
Two critical features of a summary proceeding are involved in this action: a petitioner must properly identify the property sought to be recovered; and a tenant must be served properly with predicate notices underlying the summary proceeding and with the notice of petition and petition that commences the proceeding. In this action, it is clear the Termination Notice and the Notice of Petition and Petition all refer to the wrong property. It is also clear the service of those papers was made at the wrong property.
The law specifies that a petitioner must properly identify the property sought to be recovered through a summary proceeding. RPAPL § 741 (3) states that "[e]very petition shall:... [d]escribe the premises from which removal is sought." "[A] defective description deprives the court of subject matter jurisdiction because 'it affects the very essence of the proceeding.'... An accurate description of the subject premises is so fundamental to a summary proceeding that courts have found petitions containing an incorrect description insufficient to confer jurisdiction [citations omitted]" (Papacostopulos v Morrelli, 122 Misc.2d 938, 939-940 [Civ Ct, Kings County 1984]). Misidentification of a property in a summary proceeding to recover possession is a defect depriving a court of subject matter jurisdiction, requiring dismissal (see Clarke v Wallace Oil Co., Inc., 284 A.D.2d 492, 493 [2d Dept 2001], citing Papacostopulos). Furthermore, "an accurate description of the premises will include the individual apartment unit's designation" (Daniel Finkelstein & Lucas A. Ferrara, Landlord and Tenant Practice in New York § 14.121 [Nov 2022 update] [Note: online treatise]).
In this action, there appears to be no doubt the Termination Notice and the Notice of Petition and Petition all refer to the wrong apartment number. The Moran Affidavit specifically notes that Moran lives at 352 North Street, Apartment 2, Middletown, NY, and not Apartment 1. In addition, neither the Bennett Affirmation nor the Kellner Affidavit dispute the fact that the wrong apartment was listed in the Termination Notice and the Notice of Petition and Petition (see footnote 3). As a result, the Petition could be dismissed on that basis alone.
Notwithstanding the fact that the Termination Notice and the Notice of Petition and Petition all name the wrong property as "the premises from which removal is sought" (RPAPL § 741 [3]), and notwithstanding the fact that the Termination Notice and the Notice of Petition and Petition were delivered to or served at the wrong property and to someone who does not "reside[]... at the property sought to be recovered" (RPAPL § 735 [1]), the Petitioner would have the Court rely on U.S. Bank Nat'l Ass'n v Olatunji and/or Johnson v Motyl to allow substituted service of the Notice of Petition and Petition on "Miguel" because the building at 352 North Street, Middletown, NY "is a multifamily dwelling, [and] it only has four apartments. It also has several common areas including a shared ground floor entrance and hallways" (Bennett Affirmation, paragraph 16; see Kellner Affidavit, paragraphs 3 and 4). The Petitioner also claims that because "Moran has appeared at every court date required of her" and "admitted to being aware of the proceedings," there is no need for an evidentiary hearing, and "[d]espite 'substitute service' [of the Notice of Petition and Petition] being made at the incorrect apartment within a multifamily dwelling Moran was not harmed" (Bennett Affirmation, paragraphs 21, 22, and 23).
The Petitioner's reliance on U.S. Bank Nat'l Ass'n v Olatunji and/or Johnson v Motyl is misplaced. The properties at issue in U.S. Bank Nat'l Ass'n v Olatunji and Johnson v Motyl were quite different from the Property and from Moran's actual residence. The decisions in U.S. Bank Nat'l Ass'n v Olatunji and Johnson v Motyl discussed apartments that were unascertainable from the outside or were inaccessible to the process server. In this action, however, and as noted in Respondents' Reply Memorandum, "[t]he reason that the process server served the papers on Apartment 1, rather than Apartment 2, in this matter is not difficult to surmise. There were no barriers that thwarted the process server's attempt to reach the Respondent's door at Apartment 2, rather all of Petitioner's papers were addressed to Apartment 1" (Reply Memorandum at 3).
Even the Johnson court acknowledged (in the context of CPLR § 308 [2]) that "[i]n the case of a multifamily residence, process papers ordinarily must be delivered to a person residing at the defendant's own apartment, and not to a neighbor occupying a different apartment, even when the person receiving the papers promises to redeliver them [citation omitted]" (Johnson at 478). While the Johnson court allowed an evidentiary hearing to determine whether service actually was proper in that case, the Court determines that no evidentiary hearing is needed here. There is no dispute the Termination Notice was delivered to the wrong property, and the Notice of Petition and Petition were served by substituted service on "Miguel" (someone who does not reside with Moran) at the wrong property .
There is no proof that "Miguel" even promised to deliver the papers to Moran. Furthermore, it does not matter that "Miguel" at Apartment 1 resided in the same apartment building as Moran - he had no reason to know the papers (albeit misidentified) were meant for Moran and was under no obligation to deliver them to her. In fact, Moran stated she did not know who Miguel is, and no one named Miguel was a guest at her apartment on or around the date of the purported service of the Notice of Petition and Petition.
Despite the fact that the Termination Notice, the Notice of Petition, and the Petition all referenced the wrong property, and despite the fact those notices were delivered to or served at the wrong property, the Bennett Affirmation claims that because "Moran has appeared at every court date required of her" and "admitted to being aware of the proceedings," it doesn't matter that the Termination Notice was delivered to the wrong premises or that the Notice of Petition and Petition were served at the wrong address. It does matter, however. If service of a notice of petition and petition were not made properly, "the court does not have personal jurisdiction over the respondent and the petition must be dismissed. Once a proceeding has been dismissed, the petitioner must commence a new proceeding; he/she cannot merely serve an additional set of papers [citation omitted]" (Andrew Scherer, Esq. & Hon. Fern Fisher, Residential Landlord- Tenant Law in New York § 10.41 [West Practice Guide 2022-2023 ed]).
Even though Moran admitted she was aware of this action, she did not waive her jurisdictional defense. "Proper service of process must be effectuated for the court to obtain personal jurisdiction over the respondent. The fact that a tenant has actual notice of the proceeding does not confer jurisdiction upon the court" (Andrew Scherer, Esq. & Hon. Fern Fisher, Residential Landlord-Tenant Law in New York § 7.157 [West Practice Guide 2022-2023 ed]). In addition, at the appearance on April 18, 2023, Moran requested an adjournment to seek counsel. As noted by the court in City of New York v Candelario (156 Misc.2d, 330, 331 [App Term, 2d Dept, 2d & 11th Jud Dists 1993], affd in part, revd in part on other grounds, 223 A.D.2d 617 [2d Dept 1996]), "[t]enant's pro se appearance on the return date did not constitute a waiver of [defense of lack of personal jurisdiction] as no answer was interposed at that time and the court's adjourning the matter for tenant to obtain counsel in effect extended tenant's time to answer [citations omitted]."
The Bennett Affirmation also claims that although the reference to Apartment 1 instead of Apartment 2 in the Termination Notice and the Notice of Petition and Petition was a mistake, the Court could use discretion under CPLR § 2001 to allow the Petitioner to correct the mistake or to disregard the mistake "due to the lack of prejudice to Moran" (Bennett Affirmation, paragraph 31). A predicate notice in a summary proceeding, however, cannot be amended, and the Court will not allow the Petitioner to amend the Termination Notice, the Notice of Petition, and the Petition. As noted in Bayview Loan Servicing, LLC v Lyn-Jay, Inc. (54 Misc.3d 140 [A], 2017 NY Slip Op 50160[U], *1 [App Term, 2d Dept, 2d, 11th, & 13th Jud Dists 2017]), "'[i]t is elementary that the predicate notice cannot be amended and that [a petitioner] is bound by the notice served' [citations omitted][, and] '[w]here a defective predicate notice has been served, the proceeding based thereon falls with the defective notice' [citation omitted]."
Because the Termination Notice and the Notice of Petition and Petition are defective and do not involve the specific property in which Moran is living, and because the Termination Notice and the Notice of Petition and Petition were not properly delivered to or served on Moran, the Court does not need to address the other issues raised by the Respondents' motion.
DECISION
Now, upon reading and considering the Notice of Petition and Petition, the Affidavits of Service of the Termination Notice and the Notice of Petition and Petition, the Respondents' motion with supporting and reply papers seeking dismissal of the Petition, the Petitioner's papers in opposition, all exhibits, and all prior proceedings, it is
ORDERED, that the Respondents' motion to dismiss the Petition is granted, without prejudice.
The foregoing constitutes the Decision and Order of this Court.