Opinion
Index No. LT-313092-22/NY
03-20-2023
Lel Realty Co., Petitioner-Landlord, v. Gray-Line Development Co., LLC, Respondent-Tenant.
For the Petitioner: Lawrence E. Fabian, Esq. Law Offices of Lawrence E. Fabian For the Respondent: Michael B. Trek, Esq David Rozenholc & Associates
Unpublished Opinion
For the Petitioner: Lawrence E. Fabian, Esq. Law Offices of Lawrence E. Fabian
For the Respondent: Michael B. Trek, Esq David Rozenholc & Associates
Jeanine R. Johnson, J.
Recitation as required by CPLR §2219(a) of the papers considered in the review of Respondent's motion: Papers Numbered
Respondent's Motion to Dismiss 1
Petitioner's Cross Motion and Opposition to Respondent's Motion to Dismiss 2
Respondent's Affirmation in Opposition to Petitioner's Cross Motion and Reply 3
Respondent's Reply Memorandum of Law 4
This action is a commercial non-payment proceeding. Respondent moves, by Notice of Motion, to dismiss this matter pursuant to CPLR § 3211(a)(7) for failure to state a cause of action, CPLR § 3211(a)(8) for lack of jurisdiction, and/or CPLR § 3212. The instant motion was filed with the court on November 30, 2022. Petitioner filed a Notice of Cross Motion seeking to Amend the Petition pursuant to CPLR § 3205(c), Summary Judgment pursuant to CPLR § 3212 and Opposition to Respondent's Motion to Dismiss on December 21, 2022. On January 6, 2023, the Respondent filed an Affirmation in Opposition to Petitioner's Cross Motion and a Reply to its Motion to Dismiss. On January 20, 2023, Petitioner filed a Reply Memorandum of Law in Support of Petitioner's Cross Motion to Amend the Petition and for Summary Judgment. On February 9, 2023, the motion was marked fully submitted.
LEGAL STANDARD
"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction." Leon v Martinez, 84 N.Y.2d 83, 87 (1994). However, allegations comprising bare legal conclusions are not entitled to the same consideration. See Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137 (2017) quoting Simkin v Blank, 19 N.Y.3d 46 (2012). "Where a motion seeks dismissal on the basis of documentary evidence, the complaint will not be dismissed unless the documentary evidence 'conclusively refutes' the allegations". Eaglehill Genpar LLC v FPCG, LLC, 188 A.D.3d 527, 528 (1st Dept 2020).; See AG Capital Funding Partners, L.P. v State St Bank & Trust Co. 5 N.Y.3d 582 (2005).
To succeed on a motion for summary judgment, the moving party must make a prima facie showing of entitlement to summary judgment as a matter of law by demonstrating the absence of any material issues of fact. See generally Friends of Thayer Lake LLC v. Brown, 27 N.Y.3d 1039 (2016). Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824 (2014); CPLR §3212(b). When considering a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party and draw every available inference in the non-moving party's favor. See De Lourdes Torres v. Jones, 26 N.Y.3d 742 (2016); William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470 (2013). To be entitled to summary judgment in a nonpayment proceeding, the landlord must establish a tenant landlord relationship between the parties and proof of default in the payment of rent. See Dee Cee Assoc. LLC v 44 Beehan Corp., 148 A.D.3d 636 (1st Dept 2017); 459 Webster Avenue LLC v Green, 64 Misc.3d 146 [A] (App Term, 2d Dept 2019). "If the moving party makes out a prima facie showing, the burden then shifts to the non-moving party to establish the existence of material issues of fact which preclude judgment as a matter of law." Jacobsen, 22 N.Y.3d at 833. If there are no material, triable issues of fact, summary judgment must be granted. See Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957).
ARGUMENTS
A. SERVICE OF PROCESS
Respondent asserts in its Motion to Dismiss that the Court lacks personal jurisdiction because Petitioner did not make a reasonable application to effectuate service "before resorting to nail and mail service" (Resp. Notice of Motion, pg. 3) and Petitioner did not send "a properly addressed mailing after allegedly posting the papers to the door." (Resp. Not. of Mtn, pg. 5). Respondent argues, the conspicuous service was improper because the affidavit of the process server "alleges that the attempt to gain admittance and the affixing of the papers occurred within less than one minute of each other, both at exactly 12:17pm." (Resp. Not. of Mtn, pg. 4). Additionally, Respondent further asserts the mailing was not properly addressed to Defendant at 998 Second Avenue. (See Resp. Not. of Mtn, pgs.4-5).
Petitioner argues that service was sufficient because i) "the process server's second attempt at service, even though less than a minute, satisfied the reasonable application standard as it was clear that the premises was vacant, and he could not gain entry during that time" (Pet. Memo. of Law, pg. 6) and ii) the mailing of the Notice and Petition were properly addressed to Respondent at its principal office and documented address, as indicated in mortgage records and business emails. (Pet. Memo. of Law, pg. 7-9).
To complete conspicuous-place service pursuant to RPAPL § 735, one must make a reasonable application, including two attempts, to gain admittance to the property sought to be recovered prior to affixing the Notice and Petition upon a conspicuous part of the property; mail the Respondent the Notice and Petition via both certified and regular mail at the premises sought to be recovered; mail papers to any additional addresses for the tenant of which the Petitioner had written notice; and file proof of service with the court within three days thereafter. RPAPL § 735.
Here, Petitioner submitted an affidavit from a licensed process server who attested that on August 31, 2022 at 1:43pm, and again on September 2, 2022 at 12:17pm, he was unable to gain admittance to personally serve the Respondent at 310 East 53rd Street, Commercial Unit, New York, NY10022; or find a person of suitable age and discretion who would accept service. (See NYSCEF Doc. No 38). On September 2, 2022 at 12:17pm, the Notice of Petition and Petition were affixed to the aforementioned address and sent by certified and regular mail to same. (Id.).
Respondent's assertions regarding service of process are unsupported. Courts have found conspicuous service of a notice of petition and petition on a commercial tenant sufficient when, as here, the Petitioner made two attempts, on separate days at different times. RPAPL § 735; See 159 W 23rd LLC v Spa Ciel De NY Corp, 66 Misc.3d 139 (A) (1st Dept 2020); Fang Realty Corp v Prime Six Inc., 72 Misc.3d 1224 (A) (Civil Court, Kings County 2021). Moreover, Respondent has failed to establish that the mailing was improperly addressed. The address used for mailing was stated in both the lease and deed, and the Petitioner served Respondent at all additional addresses as informed pursuant to the notice provision of the lease. Accordingly, this Court rejects Respondents claim that service of process was not properly effectuated.
B. PREDICATE NOTICE
Respondent argues the Petitioner "failed to serve the predicate default notice in the manner required by the lease and statue." (Resp. Not. Of Mtn, pg. 10). Respondent asserts that "the certified mailing of the predicate notice did not give the notice required by the governing statute and lease" (Resp, Not. of Mtn, pg. 10) and "Petitioner failed to mail copies of the predicate notice to the required parties." (Resp. Not. of Mtn, pg. 15).
Petitioner contends "the lease does not require Petitioner to serve a Default Notice as a condition precedent to maintaining a nonpayment proceeding" (Pet. Memo. of Law, pg. 10) or "require Petitioner to treat Tenant's nonpayment of rent and additional rent as a default or predicate to terminate the lease." (Id.)
RPAPL § 711(2) requires a written demand for rent be served upon any tenant as a condition precedent to the commencement of a summary proceeding for possession. Parties can give themselves more rights by way of a lease but cannot lessen a right given by statute. See PAK Realty Assocs. v RE/Max Universal, 157 Misc.2d 985 (Civil Court, NY County 1993). Here, Respondent's attempt to add additional days to the required predicate notice is misguided. This Court finds service of the rent demand complete pursuant to RPAPL § 735 with the filing of the affidavit of service. (See NYSCEF Doc. No 36). However, this Court does agree with Respondent that notice was required to be sent to mortgagee, BankUnited, pursuant to Article 18.8 of the lease, where, as here, Petitioner has commenced a summary proceeding seeking possession and arrears.
CONCLUSION
Petitioner did not provide the proper predicate notice required by the lease to the mortgagee, BankUnited, therefore, the matter must be dismissed.
Accordingly, the Respondent's Motion to Dismiss is GRANTED; it is further
ORDERED, the Petitioner's prayer for relief is DENIED in its entirety.
This constitutes the Decision and Order of the Court.