Opinion
22145
February 11, 2002
Sonnenschein, Nath Rosenthal, New York City, for petitioner.
No appearance for respondent.
OPINION OF THE COURT
The petitioner Macerich Queens Limited Partnership (hereinafter Macerich) commenced the instant commercial holdover summary proceeding against respondent M.I.E. Hospitality Inc., (hereinafter M.I.E.) seeking to recover possession of certain commercial premises located in Elmhurst and a money judgment for claimed rental arrears and use and occupancy accrued from September, 2000. Upon M.I.E.'s failure to appear for trial on January 30, 2002, an inquest was held before this court.
At the inquest, the court found the relevant facts to be as follows:
M.I.E. and Macerich's predecessor — in — interest, Queens Center Associates, L.P., entered into a commercial lease, the term of which expired on June 30, 2001. After the lease expiration, copies of a notice of termination dated November 15, 2001, demanding M.I.E.'s removal from the premises by December 31, 2001, were served on November 20, 2001 (at least 30 days prior to the termination date) by delivery upon an authorized agent of M.I.E. at the demised premises and on November 21, 2001, by delivery to M.I.E.'s attorney in Garden City and upon M.I.E.'s managing agent at its office in Lake Success. In each instance, mailings by first class and certified mail were also made. Service of the notice of petition and petition was then made by delivery, on January 22, 2002, upon a "manager" of the restaurant, at the subject premises, followed by certified and first class mailings of copies of the notice of petition and petition on January 23, 2002 to M.I.E.'s offices in Lake Success, N.Y. and Bloomsberg, Pa. Macerich further demonstrated that rental arrears and use and occupancy totaling $97,420.40 accruing from October, 2000 were unpaid by M.I.E.
After inquest, the court, finding that service of both the notice of termination and notice of petition and petition were properly effectuated pursuant to RPAPL Section 735(1) and that Macerich was entitled to recovery of possession of the subject premises, awarded petitioner Macerich judgment of possession, the warrant of eviction to be issued forthwith, and execution thereof to be stayed 10 days. The court, however, reserved decision on Macerich's request for a money judgment for arrears in rent and use and occupancy.
It is long established that in order to grant a money judgment against a defaulting tenant in a summary proceeding, the court must first acquire personal jurisdiction over the tenant in the same manner as would be required in a plenary action for rent (See 3 Rasch Landlord Tenant, 4th edition, Section 45; 14; Oppenheim v. Spike, 107 Misc.2d 55).
In cases involving natural persons as tenants, personal jurisdiction entitling the recovery of a money judgement can be obtained if service has been personally made, either by personal delivery to the respondent as set forth under CPLR Section 308(1), delivery upon a person of suitable age and discretion followed by the requisite mailing under CPLR Section 308(2) or, if service under either Sections 308(1) or (2) cannot be effectuated with due diligence, substituted or conspicuous place service (i.e. "nail and mail") as provided by CPLR Section 308(4). (See, e.g., Touhamy v. Geraldo, 187 Misc.2d 550; Fleming v. Flanagan, 178 Misc.2d 723).
However, the instant proceeding has been brought against a corporate respondent and the Tuohamy and Fleming cases, cited by petitioner's counsel in his memorandum of law, are inapplicable here. In order to obtain the requisite personal jurisdiction over a corporation, service must be made pursuant to CPLR Section 311. (McDonald v. Ames Supply Co., Inc. 22 N.Y.2d 111; Lakeside Concrete Corp. v. Pine Hollow Building Corp. 104 A.D.2d 551). CPLR Section 311(a)(1) provides, in relevant part, that personal service upon a corporation shall be made by delivery of the summons "to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service. . .". Such service under CPLR Section 311(a)(1), it has been recognized, is a more stringent standard than what is prescribed under RPAPL Section 735, which "expressly permits service to be effected upon a corporate respondent by delivery to any 'person of suitable age and discretion who. . .is employed at the property sought to be recovered"' (McKinney Cons. Laws of NY, Annot., RPAPL Section 735, Supplementary Practice Commentaries by Rudolph de Winter and Larry M. Loeb).
In the matter at bar, while the affidavit of service of the notice of petition and petition establish that personal delivery was made upon a "manager", as a person "of suitable age and discretion", petitioner neither adduced any evidence whatsoever that this restaurant manager was a "managing agent" of the respondent corporation nor made any claim that the person served fell within any of the other categories of individuals specified in Section 311(a)(1). The case of Manhattan Embassy Corp. v. Embassy Parking Corp, 164 Misc.2d 977 (also cited by petitioner), wherein the court upheld delivery to a parking attendant employed at the premises as valid service upon a corporation is not applicable to the case at bar, as petitioner in that case sought a judgment of possession only.
Upon all the foregoing, the court finds that the service effectuated upon M.I.E. was not sufficient for the court to acquire personal jurisdiction over the respondent corporation which would entitle petitioner Macerich to a money judgment.
Accordingly, petitioner's claim for a money judgment is denied and that portion of the petition requesting same is dismissed.