Opinion
Index LT-300905-21/RI
05-04-2022
FIRST STREET REALTY, LLC Petitioner, v. MRG FITNESS, INC. MICHAEL MARCHESS Respondents,
Unpublished Opinion
DECISION AND ORDER
HON. MATTHEW P. BLUM, JUDGE
Papers Numbered
Petitioner's Notice of Motion with Affidavit and Affirmation in Support of Default, Exhibits Annexed ................................ 1
Respondent's Affirmation and Affidavit in Opposition................................2
Petitioner's Affirmation in Reply to Respondent's Opposition.....................3
Upon the foregoing cited papers, the Decision/Order on the motions are as follows:
PROCEDURAL HISTORY
This action was commenced on or about November 23, 2021 by First Street Realty, LLC (hereinafter "Petitioner") with the filing of a Business Notice of Petition Non-Payment, Commercial Non-Payment Petition, and Fourteen Day Rent Demand with the Court, seeking to recover possession of 31 P' Street, Unit A (hereinafter "premises"), $24,435.23 in unpaid rent, costs, and disbursements with interest from May 1, 2020 from MRG Fitness, Inc. and Michael Marchese (hereinafter "Respondents"). Prior to the commencement of the action, on October 21, 2021, Respondents were served with a Fourteen Day Rent Demand via certified mail to Michael Marchese at 45 86th Street, Brooklyn, New York 11209 and 45 DeNoble Lane, Staten Island, New York 10301 as well as having said Fourteen Day Rent Demand affixed to the premises followed by certified mail that same day, alerting Respondents that at that time, Respondents owed $23,697.23 in unpaid rent. Petitioner and Respondents had a Lease Agreement for a property described as "31 P' Street, Unit A on the first floor, left side, Staten Island, New York 10306". Service was completed on Respondents on December 1, 2021 as Respondents were served with the Business Notice of Petition Non-Payment and Commercial Non-Payment Petition, by the documents being affixed to the premises and also mailed via certified mail on December 2, 2021. At that time. Respondents allegedly owed S24, 435.23. On January 31, 2022, Petitioner filed a Motion for Default. On March 9, 2022, the Respondents filed an answer. On March 10, 2022, both sides agreed to adjourn the motion to March 31, 2022 or sometime thereafter. Also on March 10, 2022 Petitioner filed a rejection of late answer. On April 14, 2022, Respondents filed an opposition to Petitioner's motion for default. This was followed by Petitioner's reply to Respondents' motion in opposition. Lastly, on April 25, 2022, Petitioner withdrew the claim for a money judgment against Respondent, Michael Marchese.
Discussion
Petitioner's motion for entry of a Default Judgment and Money Judgment, along with the issuance and execution of a Warrant of Eviction in favor of Petitioner and against Respondents is granted as explained below.
The Respondents Defaulted and Did Not Have a Reasonable Excuse for Failing to Answer
"On a motion for leave to enter a default judgment against a defendant based on the failure to answerer appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant's default". see CPLR §3215[f]; Nationstar Mtge, LLC v. Gross. 201 A.D.3d 942, 944 (2d, Dep't 2022) quoting HSBC Bank USA. N.A. v Diallo. 190 A.D.3d 959, 960 (2d. Dep't 2021); L&Z Masonry Corp. v Mose. 167 A.D.Bd 728, 729 (2d, Dep't 2018); Liberty County Mut. v Avenue 1 Med., P.C. 129 A, D.3d 783, 784-785 (2d. Dep't 2015). "To defeat a facially sufficient CPLR §3215 motion, a defendant must show either that there was ho default, or that [he or she] had a reasonable excuse for [his or her] delay and a potentially meritorious defense". Id. quoting Liberty County Mut. v Avenue I Med.. P.C. 129 A.D.3d 783, 785 (2d. Dep't 2015).
Pursuant to NY Real Property Act §735, "service of the notice of petition and petition shall be made by personally delivering them to the respondent or someone 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. A sworn affidavit from a process server establishes a presumption of proper service. Nationstar Mtge.. LLC V. Einhorn, 185 A.D.3d 945 (2d. Dep't 2020); HSBC Bank USA. N.A. v. Assouline. 177 A.D.3d 603, 604 (2d. Dep't 2019). A sworn denial of receipt of service containing specific facts rebuts the presumption of proper service. Nationstar Mtge.. LLC v. Einhon, 185 A.D.3d 945 (2d. Dep't 2020); U.S. Bank Natl. Ass. V. Aorta. 176 A.D.3d 755 (2d. Dep't 2019).
In this case, Petitioner, through a process server, affixed a 14 Day Rent Demand to the front door of the premises on October 21, 2021 at 8:48 AM. Attempts at personal service were made on October 19, 2021 at 9:54 AM, October 20, 2021 at 8:06 AM, and on October 21, 2021 at 8:48 AM. In addition, the 14 Day Rent Demand was mailed to the premises via certified mail on October 21, 2021. This is detailed in Petitioner's Affidavit of Service from Donald DelPrete (attached as Petitioner's Exhibit A). Moreover, the 14 Day Rent Demand was mailed to Respondent, Michael Marchese, via certified mail on October 21, 2021 at two separate addresses, 4586* Street, Brooklyn, NY 11209 and at 45 DeNoble Lane, Staten Island, NY 10301. This is detailed in Petitioner's Affidavit of Mailing by Kelly A. Britton (attached as Petitioner's Exhibit A). The Notice of Petition, Petition, and Notice of Electronic Filing, through a process server, were affixed to the door of the premises on December 1, 2021 at 8:31 AM. Attempts at personal service were made on November 29, 2021 at 4:11 PM, November 30, 2021 at 3:36 PM, and December 1, 2021 at 8:31 AM. Furthermore, these documents were mailed via certified mail on December 2, 2021. This is detailed in Petitioner's Affidavit of Service from Donald DelPrete (attached as Petitioner's Exhibit B). In addition, these same documents were mailed to Respondent, Michael Marchese, via certified mail on December 1, 2021 at two separate addresses, 4586"" Street, Brooklyn, NY 11209 and at 45 DeNoble Lane, Staten Island, NY 10301. This is detailed in Petitioner's Affidavit of Mailing by Kelly A. Britton (attached as Petitioner's Exhibit B). In addition, tracking details for the certified mail show that the items mailed via certified mail were all delivered or retrieved at the Post Office.
Here, the Notice of Petition states that the Respondents were required to answer within 10 days after service of the Petition. Respondents did not file an answer until March 9, 2022. Respondents argue that the reasonable excuse for not answering is that they were not aware of the proceeding until a copy of the Notice of Motion was slipped under the entrance door of the premises. Respondents deny ever having been served with the Fourteen Day Rent Demand, Notice of Petition or Petition and that Respondents were completely unaware of the matter until finding the motion slipped under the door.
The Petitioner's Affidavits of Service establish a presumption of proper service. Each affidavit details the manner in which the Respondents were served. Each description of service comports with the proper manner of service under the RPAPL. Although Respondents claim that they never received service of the documents, the Respondents did in fact receive the motion served to the exact same address. Notably, Respondents do not argue that Petitioner was using an incorrect address. Furthermore, despite the motion being served on January 27, 2022, v Respondent failed to answer until March 9, 2022, The general claim that Respondents never received the requisite documentation without more specific facts is insufficient to overcome the presumption of validity of Petitioner's Affidavit of Service.
As the Court finds that Respondents did not have a reasonable excuse for failing to interpose an answer, the analysis of whether Respondents had a potentially meritorious defense is moot. Accordingly, the Court finds Respondents in default.
Conclusion
Based on the foregoing, the Court finds the Respondents in default and hereby grants Petitioner a monetary judgment in the amount of $24,435.23 for rent owed from May 2020 against Respondent, MRG Fitness, and an immediate Judgment of Possession in favor of the Petitioner and against Respondents with a Warrant of Eviction issued forthwith, with an earliest execution date of May 18, 2022. This constitutes the final decision and order of this Court.