Opinion
Index No. LT-054446-20/NY
03-04-2022
91-7 SEVENTH AVENUE LLC, Petitioner, v. ZUCCA TRATTORIA INC., Respondent-Tenant, and "XYZ Corp.," Respondent-Undertenant.
Adam B. Sherman, New York City, for respondent Zucca Trattoria Inc. Belkin Burden Goldman, LLP (Noelle Picone of counsel), New York City, for petitioner.
Adam B. Sherman, New York City, for respondent Zucca Trattoria Inc.
Belkin Burden Goldman, LLP (Noelle Picone of counsel), New York City, for petitioner.
OPINION OF THE COURT
Richard Tsai, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers NYSCEF Doc. No.
Order to Show Cause, Affidavit, Affirmation
Exhibits A-C and Affirmation of Service Annexed 5-13
Affirmation in Opposition, Affidavit and Exhibits A-F Annexed 14-22
Traverse Hearing, Petitioner's Exhibits 1-6 24-29
In this commercial holdover proceeding, respondent Zucca Trattoria Inc. moved, by order to show cause, seeking to vacate its default in answering the petition on the ground that petitioner failed to effectuate service and obtain personal jurisdiction over respondent Zucca Trattoria (Motion Seq. No. 001). By decision and order dated November 30, 2021 and entered December 1, 2021, another judge of the Civil Court directed a traverse hearing and held the motion in abeyance pending the determination of the traverse hearing.
On February 16, 2022, this court held a traverse hearing. This decision sets forth the findings of fact and conclusions of law following the hearing, and it finally determines the order to show cause.
BACKGROUND
On March 3, 2020, petitioner commenced this commercial holdover proceeding against respondents Zucca Trattoria Inc. and "XYZ Corp." to recover possession of premises located in restaurant space at 95 Seventh Avenue South, in the building known as 91-95 Seventh Avenue South a/k/a 14 Barrow Street in Manhattan (see NY St Cts Elec Filing [NYSCEF] Doc No. 10, notice of petition and petition).
According to an affidavit of service, the process server, Dwight Braumuller, served two copies of the pleadings upon respondents Zucca Trattoria Inc. and "XYZ Corp." on March 7, 2020 at 2:08 pm by substituted service upon "Berry Kukaj," described as a male, between the ages of 45-50 years old, with white skin, brown hair, between 6 feet and 6 feet and 1 inches tall, weighing between 185 and 190 pounds, who spoke with an accent (NYSCEF Doc. No. 22).
The affidavit of service also stated that, on March 7, 2020, two copies of the pleadings addressed to respondents were sent by regular first class mail, certified mail, and certified mail return receipt requested "at the property sought to be recovered" (id. ). An additional mailing was sent to "Gino Giannuzzi" at 40 Stewart Street, Plainview, New York, 11803.
According to court records, the matter was adjourned several times, and, on July 13, 2021, another judge of the Civil Court apparently set the case down for an inquest and adjourned the matter to September 30, 2021 for an inquest. On September 30, 2021, the matter came before this court, which adjourned the case to October 22, 2021 so that the case could be converted to efiling.
Meanwhile, on October 1, 2021, respondent Zucca Trattoria Inc. brought an order to show cause seeking to vacate its default in answering the petition pursuant to CPLR 5015 (a) (1) (Motion Seq. No. 001) (see NYSCEF Doc Nos. 5-13).
Respondent contended that petitioner failed to effectuate service and thus failed to obtain personal jurisdiction upon respondent. Respondent's president, Besim Kukaj, maintained that no individual named "Berry Kukaj" was ever employed at the restaurant, and that the follow up mailing of the pleadings was improperly sent to Gino Giannuzzi, respondent's prior owner (NYSCEF Doc No. 5, aff of Besim Kukaj ¶ 4). Besim Kukaj also denied receipt of the notice of cancellation of the lease, asserting that it had been mailed to Giannuzzi (id. ¶ 4). Respondent maintained that petitioner had accepted rent payments during the pendency of the petition, thus vitiating the notice of cancellation (id. ).
By decision and order dated November 30, 2021 and entered December 1, 2021, another judge of the Civil Court directed a traverse hearing, and held the branch of the motion seeking vacatur pursuant to CPLR 5015 (a) (1) in abeyance pending the determination of the traverse hearing (NYSCEF Doc. No. 23).
TRAVERSE HEARING
On February 16, 2022, this court conducted a traverse hearing virtually via MS Teams on the stenographic record (Anne E. Gallagher, court reporter).
Petitioner's case
Petitioner called Dwight Braumuller as a witness, who was duly sworn. Petitioner's exhibits 1-6 (NYSCEF Doc Nos. 24-29) were admitted into evidence.
Dwight Braumuller testified that he is a paralegal and licensed process server, employed by the law firm of Belkin Burden for 31 years. He supervises a staff of five, and his work entails delegating work to others and going out into the field to serve process. Braumuller testified that he was asked to serve documents upon the named respondent.
According to Braumuller, he inspected the documents to confirm that they were correct, and then proceeded to 95 Seventh Avenue South, New York, New York. He testified that he saw a commercial space, a restaurant, and two properties to the right and left of the premises. He described a green awning in front of the premises, and a plaque that was different from what appeared on the petition.
He claimed that, upon arrival at the location, he took a photograph, which was imprinted with the date, time and GPS coordinates, took notes in his log book, and then entered the premises. According to Braumuller, there was no doorman, and no elevator, and the restaurant was open. He testified that the lights were on, and he saw two gentlemen inside, but he could not tell if the restaurant was open for business.
According to Braumuller, one of the gentlemen approached him, asking if he needed any help. Braumuller stated that he asked if the man was an employee, and the man replied that he was the manager. He then handed to the gentleman two copies of the pleadings for Zucca Trattoria and "XYZ Corp." Braumuller stated that, at his request, the gentleman signed Braumuller's copies of the notice of petition and petition with the name "Berry." Braumuller then testified that he asked for the gentleman's last name, which Braumuller wrote as "Kukaj" (id. ). Braumuller testified that he did not speak to the second gentleman.
Braumuller testified that, after the documents were signed, he left and returned to the office to prepare mailings for the addresses listed on the petition on the same day that the pleadings had been served. He stated that he put postage on the envelopes, and mailed them via first class and certified mail at the post office, where he received mail receipts. Braumuller testified that the affidavit of service incorrectly stated that mailing of the pleadings was done on March 7, 2020, and that the actual date of the mailing was March 6, 2020.
On cross examination, respondent's counsel asked Braumuller about the notations in his log book with respect to the boxes "Affixed to Door," "Slid Under Door," "Doorman," and "Elevator," which are found in the middle of the page of each log entry. The four excerpts from the log book showed entries which were marked with check marks and "X" marks in those boxes, and some boxes were not marked at all (see NYSCEF Doc. No. 28 [Petitioner's exhibit 5]). According to Braumuller, he would use a check mark to indicate that he did it; an "X" mark meant that there was no elevator or doorman. However, Braumuller later testified that the "X" "mark" would not necessarily mean that there was no doorman or no elevator at the location.
In the log book entry for service at Zucca Trattoria, Braumuller had marked "X" in the boxes "Affixed to Door," "Slid Under Door," "Doorman," and "Elevator" (see NYSCEF Doc. No. 28 [Petitioner's exhibit 5], at 4). Braumuller testified that the "X" marks on that entry indicated that none of those things were done. By contrast, with respect to a log entry for service made at another location just before service at Zucca Trattoria, Braumuller testified that he had not affixed the pleadings to the door of the premises. However, there was no "X" mark in the box "Affixed to Door" for that log entry (see id. , at 3). Braumuller explained that he did not mark an "X" in that box because he had served a doorman, and there was an elevator, which were both marked by check marks (see id. , at 3).
Respondent's case
Respondent Zucca Trattoria, Inc. called Besim Kukaj as a witness, who was duly sworn. respondent did not submit any exhibits into evidence at the hearing.
Besim Kukaj testified that he is 41 years old, and that he became the owner of the restaurant after purchasing the company in 2010 or 2011 from Gino Giannuzzi.
According to Besim Kukaj, Zucca Trattoria served Mexican food, and was open up until November 2019. He testified that, after November 2019, the restaurant closed because he lost the liquor license, and that after COVID hit, the restaurant did not reopen. Besim Kukaj testified that, on March 6, 2020, the restaurant was not open; it was closed.
In November 2019, the restaurant changed its name to "Lorea." When asked if the restaurant employed any managers, Besim Kukaj replied, "Alban Laci." According to Besim Kukaj, there was no employee named Berry Kukaj.
Besim Kukaj denied that he ever received a copy of the pleadings in March 2020. He testified that he frequently communicated with the property manager, Debra Schwartz. According to Besim Kukaj, he provided the landlord with his own address when he signed the lease, which was 410 69th Street in Guttenberg, New Jersey.
Besim Kukaj denied signing Petitioner's Exhibit 6 (NYSCEF Doc. No. 29).
FINDINGS OF FACT
Dwight Braumuller is an experienced, licensed processed server (NYSCEF Doc. No. 24 [Petitioner's Exhibit 1]). Braumuller credibly testified that, on March 6, 2020, at around 2:05 p.m., he arrived at 95 Seventh Avenue South in Manhattan to serve two copies of the notice of petition and petition upon respondents. He credibly testified that he took a photograph of the location before entering the premises and took notes in his logbook. His testimony was corroborated by a photograph and excerpts from this process server's logbook (NYSCEF Doc Nos. 26, 29 [Petitioner's Exhibits 3, 5]).
Braumuller credibly testified that he entered the premises, which was open, and observed 2 male individuals, and that one of those individuals approached him to ask how he could help. Braumuller credibly testified that he identified himself as being from the landlord's office and had documents to serve upon Zucca Trattoria, and that the gentleman stretched out his hand.
Braumuller credibly testified that he served a gentleman who identified himself as the manager, named "Berry Kukaj," which was corroborated by a copy of the notice of petition signed by "Berry" (NYSCEF Doc. No. 29 [Petitioner's Exhibit 6]).
On cross examination, respondent's counsel elicited inconsistencies in Braumuller's testimony concerning the notations of check marks and X marks in Braumuller's log book. The court has also considered the testimony of Besim Kukaj, who claimed that the restaurant does not have any employee named "Berry," that the manager of the restaurant was named Alban Laci, that Besim Kukaj did not sign a copy of the pleadings.
"When there is conflicting evidence, a credibility determination is necessary" ( Lattingtown Harbor Prop. Owners Assn., v Agostino , 34 AD3d 536, 538 [2d Dept 2006] ). Here, this court is not persuaded that the inconsistencies in Braumuller's testimony concerning the markings in the log book were so extensive or material so as to cast doubt upon Braumuller's credibility or his testimony that he physically handed the pleadings to an employee of Zucca Trattoria, especially given the existence of a signature on a copy of the notice of petition made by the employee who spoke to Braumuller. Having weighed the witnesses’ credibility and reviewed the documentary evidence, this court finds that petitioner's evidence was more credible than respondent's evidence.
Thus, this court finds that, on March 6, 2020, around 2:05 p.m., a licensed process server delivered two copies of the notice of petition and petition upon an employee of Zucca Trattoria, i.e., a manager., at premises located at 95 Seventh Avenue South in Manhattan.
Braumuller credibly testified that, after delivering the pleadings to the employee, he returned to the office to prepare copies of the pleadings for mailing. Based on his credible testimony and copies of postal mailing receipts, this court finds that Braumuller mailed copies of the pleadings to "Zucca Trattoria d/b/a Taqueria Mesa" and to "XYZ Corp." to "95 Seventh Avenue South, Restaurant Space, New York, NY 10014", by first class and certified mail on March 6, 2020 (NYSCEF Doc No. 25 [Petitioner's Exhibit 2]). Braumuller adequately explained the inconsistency in the date of mailing reflected on his affidavit of service.
CONCLUSIONS OF LAW
As a threshold matter, this court notes that respondent's order to show cause sought to vacate the default in appearance pursuant to CPLR 5015 (a) (1), on the ground of excusable default, yet respondent asserts that personal jurisdiction was not properly obtained over respondent, which implicates CPLR 5015 (a) (4). The court which directed the traverse hearing apparently construed that respondent's order to show cause raised both grounds.
If a default is vacated pursuant to CPLR 5015 (a) (1), then respondent would be permitted to answer the pleadings. However, if default is vacated under CPLR 5015(a) (4), not only would the default judgment be vacated, but the proceeding would also be dismissed for lack of personal jurisdiction (see Avis Rent A Car Sys., LLC v Scaramellino , 161 AD3d 572, 573 [1st Dept 2018] ; Wells Fargo Bank, N.A. v Jones , 139 AD3d 520, 523 [1st Dept 2016] ).
As the court which directed the traverse hearing correctly noted,
"Where, as here, a defendant seeks vacatur of a default under both CPLR 5015(a)(1) (excusable default) and CPLR 5015(a)(4) (lack of jurisdiction), the court should determine whether or not it has personal jurisdiction over the defendant before reaching the 5015(a)(1) ground, since the defendant's ‘lack of a reasonable excuse ... is obviated if the court is without personal jurisdiction over defendant, and all subsequent proceedings would be rendered null and void’ "
( Wells Fargo Bank, N.A. , 139 AD3d at 522 [citations omitted]).
"[O]nce jurisdiction and service of process are questioned, [petitioner] ha[s] the burden of proving satisfaction of statutory and due process prerequisites" ( Stewart v Volkswagen of Am. , 81 NY2d 203, 207 [1993] ). Where, as here, the affidavit of service was sufficiently rebutted, the petitioner must establish jurisdiction by a preponderance of the evidence at a traverse hearing (see Citibank, N.A. v K.L.P. Sportswear, Inc. , 144 AD3d 475, 476 [1st Dept 2016] ; Woods v M.B.D. Community Hous. Corp. , 90 AD3d 430, 430 [1st Dept 2011] ; Blue Spot v Superior Mdse. Elecs. Co. , 150 AD2d 175, 176-77 [1st Dept 1989] ; Wells Fargo Bank, NA v Chaplin , 65 AD3d 588, 589 [2d Dept 2009] ).
RPAPL 735 (1) provides that service of the notice of petition and petition shall be made by, among other things, "delivering to and leaving personally with a person of suitable age and discretion who resides or is employed at the property sought to be recovered." Within one day after delivery to such a suitable person, the notice of petition and petition must be mailed to respondent "both by registered or certified mail and by regular first class mail," "at the property sought to be recovered" if respondent is a corporation, and to the principal office or place of business of the corporation within the state, if it is not located on the property sought to be recovered, and petitioner had such written information of the address ( RPAPL 735 [1] [a], [b] ).
Here, as discussed above, this court found that petitioner's process server personally delivered the pleadings to an employee at the restaurant on March 7, 2020 at 2:08 p.m. Even assuming that there is no person named "Berry Kukaj" employed at the restaurant, "the fact that the stated name [on the affidavit of service] may be incorrect is not sufficient to refute proper service" ( Wells Fargo Bank, N.A. v Javier , 179 AD3d 482 [1st Dept 2020] ).
Additionally, this court found that the pleadings were mailed to respondent on March 6, 2020 by first class mail and certified mail. There was no evidence at the hearing that petitioner had written information that the principal place of business of Zucca Trattoria, Inc. was not located on the premises.
In sum, petitioner demonstrated, by a preponderance of the evidence, that service of process was validly made upon respondent Zucca Trattoria Inc. by substituted service upon an employee, and the court therefore has personal jurisdiction over this respondent. Accordingly, traverse is overruled ( Fifty-Seven Assoc., LP v Feinman , 28 Misc 3d 131[A], 2010 NY Slip Op 51268[U] [App Term, 1st Dept 2010] ).
As to the branch of respondent's order to show cause to vacate its default in answering the petition pursuant to CPLR 5015 (a) (1), the only excuse that respondent offered was the lack of service argument. Thus, respondent has no excuse for its default in answering the petition, and the motion to vacate should be denied regardless of whether respondent has a meritorious defense ( Technical Career Inst. v Clerveaux , 66 Misc 3d 152[A], 2020 NY Slip Op 50346U] [App Term, 1st Dept 2020]).
In support of respondent's order to show cause, Besim Kukaj asserted that petitioner had accepted rent payments from Zucca (see NYSCEF Doc. No. 5, Besim aff ¶ 5). Respondent submitted a copy of a check in the amount of $25,000, which was purportedly tendered on August 24, 2020 (see NYSCEF Doc. No. 8).
However, given the lack of a reasonable excuse, this court need not address the issue of whether proof of a tender of rent would demonstrate a "substantial possibility of success" that the landlord accepted payment of rent , for the purposes of CPLR 5015 (a) (1) (see Federal Natl. Mtge. Assn. v Rosenberg , 180 AD3d 401, 402 [1st Dept 2020] ["The moving party simply needs to show a ‘substantial possibility of success in the action"]).
Respondent's motion, by order to show cause, to vacate the default judgment is therefore denied. The inquest that was held in abeyance due to respondent's motion is recalendared to Part 52 on March 24, 2022 at 9:30 a.m.
CONCLUSION
Upon the foregoing cited papers, it is hereby ORDERED that respondent Zucca Trattoria's motion, by order to show cause, to vacate a default in answering the holdover petitioner (Motion Seq. No. 001) is DENIED ; and it is further
ORDERED that this matter is scheduled for an inquest in Part 52 , courtroom 772 on 3/24/2022 at 9:30 am .
This constitutes the decision and order of the court.