Opinion
No. 570546/22
02-21-2023
Merritt Avenue, LLC, Petitioner-Landlord-Respondent, v. Empire Scaffolding Systems, Inc., Respondent-Tenant-Appellant, and
Unpublished Opinion
Tenant Empire Scaffolding Systems, Inc., as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Brenda Rivera, J.), entered May 2, 2022, which denied its motion to dismiss the petition in a holdover summary proceeding.
PRESENT: Hagler, P.J., Tisch, James, JJ.
PER CURIAM.
Order (Brenda Rivera, J.), entered May 2, 2022, insofar as appealed from, affirmed, with $10 costs.
Tenant's motion to dismiss the holdover petition, premised upon the alleged improper service of the notice of termination, was properly denied. The affidavit of the process server demonstrates that substituted service was properly made pursuant to RPAPL 735(1), by delivery of the papers to one of tenant's employees at the subject premises, one Bernard Torres, followed by the requisite mailing (see Milonis v 3273-3285 Westchester Ave. Realty Corp., 70 Misc.3d 136 [A], 2021 NY Slip Op 50066[U][App Term, 1st Dept 2021]; 116 John St. Owner, LLC v Chea Kim, 59 Misc.3d 148 [A], 2018 NY Slip Op 50784[U][App Term, 1st Dept 2018]; 113 Downtown LLC v B & G Enters. of Staten Is., Inc., 2002 NY Slip Op 50355[U][App Term, 1st Dept 2002]). In opposition, tenant failed to rebut the presumption of proper service raised by the affidavit of service (see Wells Fargo Bank, NA v Edwards, 95 A.D.3d 692 [2012]). Tenant did not dispute that Torres was employed at the premises or that he was served. Nor were tenant's conclusory and unsupported assertions sufficient to raise a question warranting a hearing as to whether Torres was a "person of suitable age and discretion" as that term has been defined by case law (see e.g. Roldan v Thorpe, 117 A.D.2d 790, 791 [1986], appeal dismissed 68 N.Y.2d 663 [1986]; Bakht v Akhtar, 18 Misc.3d 78 [App Term, 2d Dept 2007]).