Opinion
LT-057941-19/NY
03-02-2020
BAYARD GROUP INC, Petitioner v. YU LI PING WANG, Respondent.
Kaplan & Chun, P.C., Howard Chun, Esq., 207 East 4th Street, 1st floor, New York, NY 10009, (212) 777 - 0320 howard@kaplan.chun.com, Law Office of Jay Stuart Dankberg, Jay Stuart Dankberg, Esq., 1220 Broadway, Suite 502, New York, NY 10001, (212) 967 - 1114
Kaplan & Chun, P.C., Howard Chun, Esq., 207 East 4th Street, 1st floor, New York, NY 10009, (212) 777 - 0320
howard@kaplan.chun.com, Law Office of Jay Stuart Dankberg, Jay Stuart Dankberg, Esq., 1220 Broadway, Suite 502, New York, NY 10001, (212) 967 - 1114
Frances A. Ortiz, J.
Recitation, as required by CPLR 2219(A), of the papers considered in the review of these Motions to: Strike and Cross Motion to dismiss
PAPERS /NUMBERED
Notice of Motion and Affidavits Annexed 1
Notice of Cross Motion and Affidavits Annexed 2
Petitioner's Affirmation in Opposition 3
Respondent's Affirmation in Opposition to Cross Motion 4
Exhibits
Stipulations
Other
Upon the foregoing cited papers, the Decision/Order on these consolidated Motions is as follows:
This is a non-payment proceeding. Petitioner moves for the second time to strike respondent's first and third affirmative defenses in respondent's answer and for use and occupancy pendente lite. The first affirmative defense asserts that the court lacks personal jurisdiction for failure to serve a true copy of the written rent demand. Specifically, the defense claims that petitioner made no attempt to deliver a true copy of a written demand on all necessary parties or any tenant in person who might reside or be employed at the premises. Additionally, the defense indicates that petitioner did not effectuate proper conspicuous service as it did not mail a copy of the written demand to tenant or occupant within one day as required by RPAPL § 735. The third affirmative defense indicates that the court lacks personal jurisdiction over respondent by reason of failure to serve a notice of petition and petition in person. Specifically, the defense indicates that petitioner made no attempt to deliver a true copy of the notice of petition and petition on all necessary parties and that petitioner made no valid attempt to deliver a complete copy of the papers to a person of suitable age and description. In fact, the defense claims that the process server, Howard Chun (who is also petitioner's attorney of record) asked a minor child, Angel Wang, where her mother was. When the minor replied, "not here," Mr. Chun taped the petition to the door.
This Court per decision and order dated October 28, 2019 denied petitioner's motion to strike defenses without prejudice to renew upon proper papers. The use of the word "renew" by this Court in that decision was meant to be synonymous with the word "resubmit." Further, such use of the word "renew" in the decision was not meant to be construed within the meaning of a CPLR 2221 (e) motion for renewal which appears to have been erroneously interpreted by respondent's counsel in the opposition papers. Accordingly, any opposition by respondent to petitioner's instant motion claiming procedural defects based on a CPLR 2221 (e) motion for renewal will not be considered, as it is inapplicable.
According to 6 R.C.N.Y § 2-232 (b) , no license to serve legal papers under Subchapter 23 (Subchapter 23 requires professional process servers to obtain a license from Department of Consumer Affairs to serve legal papers) shall be required of any attorneys duly admitted to practice in the State of New York. New York City, NY, Rules, Tit. 6, § 2-232 (b).
MOTION TO STRIKE DEFENSES
In a motion to dismiss an affirmative defense pursuant to CPLR 3211(b) , a plaintiff or petitioner bears the heavy burden of showing that the defense is without merit as a matter of law. Granite State Ins. Co. v. Transatlantic Reinsurance Co., 132 AD3d 479, 481, (1st Dep't 2015) ; 534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick, 90 AD3d 541 (1st Dep't 2011). The allegations set forth in the answer must be viewed in the light most favorable to the defendant or respondent. 182 Fifth Ave. v. Design Dev. Concepts, 300 AD2d 198, 199 (1st Dep't 2002). "[T]he defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed." 534 E. 11th St v. Hendrick, 90 AD3d at 542. Further, the court should not dismiss a defense where there remain questions of fact requiring a trial. Id.
According to RPAPL § 735 ,
Service of the notice of petition and petition shall be made by personally delivering them to the respondent; or by 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, a copy of the notice of petition and petition, if upon reasonable application admittance can be obtained and such person found who will receive it; or if admittance cannot be obtained and such person found, by affixing a copy of the notice and petition upon a conspicuous part of the property sought to be recovered or placing a copy under the entrance door of such premises; and in addition, within one day after such delivering to such suitable person or such affixing or placement, by mailing to the respondent both by registered or certified mail and by regular first class mail.
However, before conspicuous place service may be employed, there must be a showing that "upon reasonable application" admittance to the premises cannot be obtained and/or a proper person cannot be found to whom the process may be delivered. Eight Assocs. v. Hynes, 102 AD2d 746, 748 (1st Dep't 1984), aff'd, 65 NY2d 739 (1985). Specifically, when effectuating conspicuous place service pursuant to RPAPL§ 735 , there must be a showing that the process server attempted to personally serve the tenant at the subject premises sought to be recovered at least twice, before resorting to conspicuous place service. One attempt must be during reasonable business hours and the other during nonbusiness hours, usually on two separate days and at least one attempt during a time when a working person would reasonably be expected to be at home. 322 West 47th Street HDFC v. Loo, 153 AD3d 1143 (1st Dep't 2017), leave to appeal dismissed, 30 NY3d 1084 (2018).
Additionally, a process server's affidavit of service is considered prima facie evidence of proper service. NYCTL 2012—A Trust v Colbert, 146 AD3d 482, 483 (1st Dep't 2017). A conclusory denial of receipt of the papers is insufficient to raise an issue of fact warranting dismissal or hearing to determine the validity of service. Sando Realty Corp. v Aris, 209 AD2d 682 (2nd Dep't 1994) ; Dolec Consultants v Lancer Litho Packaging Corp. 245 AD2d 415 ( 2nd Dep't 1997). However, a sworn non-conclusory denial of service is sufficient to dispute the veracity or content of the process server's affidavit, requiring a traverse hearing. NYCTL 1998-1 Tr. v. Rabinowitz, 7 AD3d 459, 460 (1st Dep't 2004).
Here, the affidavit of service of the process server, Howard Chun, for the rent demand shows two attempts at service of the rent demand on respondent, Yu Li Ping Wang at the subject premises. One attempt was on Monday, March 25, 2019 at 7:23 a.m and another attempt was on Tuesday, March 26, 2019 at 12:39 p.m. with mailings on March 26, 2019 by certified and regular mail. Also, the affidavit of service of the process server, Howard Chun, for the notice of petition and petition shows two attempts at service of the notice of petition and petition on respondent, Yu Li Ping Wang. One attempt was on Tuesday, April 9, 2019 at 7:39 a.m. and another attempt was on Wednesday, April 10, 2019 at 12:27 p.m. Facially both of these affidavits of service comply with RPAPL § 735 conspicuous place service and common law requirements. The affidavits show attempts made on two separate weekdays with one attempt at working hours and the other attempt during non-working hours. Eight Assocs. v. Hynes, supra. ; 322 West 47th Street HDFC v. Loo, supra.
Respondent's conclusory denial of receipt of the papers in her answer is insufficient to raise an issue of fact warranting dismissal or hearing to determine the validity of service. Sando Realty Corp. v Aris, supra. Moreover, the affidavit of minor child Angel Wang is insufficient to rebut the presumption of proper service for several reasons. (Exhibit B to Cross Motion). First, Ms. Wang's affidavit does not indicate a date and time for her purported encounter with Howard Chun, the server and petitioner's attorney. However, her affidavit confirms that she saw Mr. Chun on an unidentified date taping papers to the door of the subject premises. Second, she does not say what specific papers were taped to the door during her exchange with Mr. Chun. These are merely conclusory statements regarding denial of service that do not warrant dismissal of the petition or a traverse hearing.
The affidavit does not indicate Ms. Wang's age but she was old enough to hand Mr. Chun the business card of her mother's (the respondent, Yu Li Ping Wang) lawyer. (Wang Affidavit, Exhibit B).
Accordingly, petitioner's motion to strike respondent's first and third affirmative defenses in respondent's answer is granted as such defenses are without merit as a matter of law. Granite State Ins. Co. v. Transatlantic Reinsurance Co., supra.
To the extent that the "first objection in point of law" (lack of personal jurisdiction as to the rent demand) and "second objection in point of law" (lack of personal jurisdiction as to notice of petition and petition) in respondent's answer is the equivalent to the first and third affirmative defenses, the "first objection in point of law" and the "second objection in point of law" is also stricken from the answer for the reasons already discussed above.
MOTION FOR USE AND OCCUPANCY
Petitioner moves for ongoing use and occupancy pendente lite. The court has broad discretion in awarding use and occupancy pendente lite. E. 4th St. Garage v. Estate of Berkowitz, 265 AD2d 249 (1st Dep't 1999) ; Alphonse Hotel Corp. v. 76 Corp., 273 AD2d 124, (1st Dep't 2000). Accordingly, based on such broad discretion this Court grants petitioner's motion seeking payment of monthly use and occupancy pendente lite at a rate of $1,145.43 starting March 2020 by the 10th of the month without prejudice. This order is not pursuant to RPAPL § 745 but based on this Court's discretion.
RESPONDENT'S CROSS-MOTION
Respondent cross-moves to dismiss the petition pursuant to CPLR 3211 (a) and 3212 , to disqualify petitioner's attorney and for sanctions based on a frivolous conduct under 22 NYCRR 130.1 —1. Respondent in her cross-motion does not cite which sub-provision of CPLR 3211 (a) , she is seeking dismissal.
The pleading in a motion to dismiss pursuant to CPLR 3211 is afforded a liberal construction. CPLR 3026. The facts alleged on the complaint or petition must be accepted as true and afford the plaintiff or petitioner the benefit of every possible inference and determine only whether the facts alleged fit within any cognizable legal theory. Leon v Martinez, 84 NY2d 83 (1994). Here, the argument that the rent demand was only in English, a language that respondent does not understand is not a basis for dismissal. The trial court case respondent cites, Metz v Duenas, 182 Misc 2d 528 (Nassau Cty, Dist Ct. 1999) , for the proposition that a rent demand must be in a language that the tenant understands is unavailing and not a basis for dismissal. In Metz, supra. , the trial court found that the rent demand given did not provide the tenant with the requisite notice pursuant to RPAPL § 711. There, the court's dismissal was not exclusively based on the fact that the rent demand was written in English which was a language that the tenant did not understand.
Respondent cites no appellate authority or any other trial court cases for this proposition.
Moreover, under CPLR 3211 (a) (1) , a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claim as a matter of law. Heaney v. Purdy, 29 NY2d 157 (1971). Here, the non-payment petition fits within a cognizable legal theory for non-payment of rent and respondent in her cross motion has not submitted documentary evidence to establish a defense to the asserted claim as a matter of law. Heaney v. Purdy, supra. Accordingly, respondent's cross-motion to dismiss is denied.
Additionally, respondent seeks to have petitioner's attorney, Howard Chun, Esq. disqualified as petitioner's attorney pursuant to Rule 3.7 (a) of the New York Rules of Professional Responsibility, 22 NYCRR § 1200. According to Rule 3.7 (a) :
Lawyer as witness. (a) A lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact unless: (1) the testimony relates solely to an uncontested issue;(2) the testimony relates solely to the nature and value of legal services rendered in the matter;
(3) disqualification of the lawyer would work substantial hardship on the client; (4) the testimony will relate solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; or (5) the testimony is authorized by the tribunal.
According to respondent, since she is contesting service of the rent demand, notice of petition and petition served by Mr. Chun, he may be a necessary witness in a traverse hearing. As such, she contends, he should be disqualified as petitioner's attorney. However, since this Court struck respondent's defenses for lack of personal jurisdiction of the rent demand, notice of petition and petition, there is no need for a traverse hearing requiring Mr. Chun to be a witness.
Nevertheless, this Court notes that disqualification based on the ground that an attorney is likely to be a witness is not mandatory. Courts in determining whether to disqualify an attorney on the ground that he or she will likely be a witness, may be guided, but not bound by, the standards set forth in Rule 3.7(a). Ultimately, the decision to disqualify an attorney rests in the sound discretion of the court. Harris v. Sculco, 86 AD3d 481 (1st Dep't 2011), citing S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 NY2d 437 (1987). Also, a court considering to apply a disqualification rule must consider the client's valued right to select its own counsel and the fairness and effect of disqualification in the particular factual setting. S & S Hotel Ventures Ltd. Partnership, supra at 440.
Lastly, respondent's request for sanctions against petitioner's counsel based on frivolous conduct under 22 NYCRR 130.1 —1 is denied. Petitioner's counsel has not exhibited any frivolous conduct within the meaning of 22 NYCRR 130.1 —1 by instituting this non-payment proceeding or moving for dismissal of affirmative defenses.
The matter is adjourned to April 6, 2020 at 9:30 a.m. in Part F, Room 830 for all purposes including trial.
This is the decision and order of the Court, copies of which are being mailed to those indicated below.
ORDERED: Petitioner's motion to strike respondent's first and third affirmative defenses in respondent's answer is granted.
ORDERED: Petitioner's motion seeking pendente lite use and occupancy is granted.
ORDERED: Respondent's cross-motion to dismiss, disqualify petitioner's attorney, and for sanctions is denied.