Opinion
Index No. LT-300223-22/RI
04-12-2022
ROSSVILLE AVE., LLC Petitioner, v. LEX AND ROB DELO PIZZA, LLC Respondent,
Unpublished Opinion
DECISION AND ORDER
HON. MATTHEW P. BLUM JUDGE
| Papers | Numbered |
| Defendant's Notice of Motion to Dismiss and Affirmation, Exhibits Annexed................................. |
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| Plaintiffs Affirmation in Opposition................................................... |
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| Defendant's Affirmation in Reply to Plaintiffs Opposition........................ |
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Upon the foregoing cited papers, and oral argument, the Decision/Order on the motions are as follows:
PROCEDURAL HISTORY
This action was commenced on or about March 11, 2022 by Rossville Ave., LLC (hereinafter "Petitioner") with the filing of the Notice of Petition and Petition on Lex and Rob Delo Pizza, LLC (hereinafter "Respondent"). Prior to the commencement of the action, Petitioner and Respondent had a Lease Agreement for property located at 55 Gunton Place, Store 1, Staten Island, New York 10309 (attached as Petitioner's Exhibit D & Unmarked Respondent Exhibit). On May 5, 2021, Respondent was served with a Default Notice alerting Respondent that at that time, Respondent owed $30,711.05 in unpaid rent (attached as Petitioner's Exhibit A & Respondent's Exhibit C). Subsequently, Respondent was then served with a 14 Day Rent Demand (attached as Petitioner's Exhibit B & Respondent's Exhibit C). At that time, Respondent allegedly owed $48,815.74. Petitioner then filed this action seeking to recover possession of the aforementioned premises, $52,873.18 in unpaid rent, interest, costs, and disbursements from January 5, 2021, and attorney's fees. Oral arguments were heard in Richmond County Civil Court, Part 52, on March 31, 2022.
The Lease Agreement between the parties describes the property as 55 Gunton Place, Store 1, Staten Island, New York 10309. Respondent's objection to said description is later addressed in this decision.
Respondent now moves the Court to dismiss the action pursuant to CPLR §3211(a) and the RPAPL. First, Respondent claims that the Court lacks in personam jurisdiction over the Respondent pursuant to CPLR §3211(a)(8) and RPAPL §735. Next, Respondent claims that the Rent Demand served on Respondent is defective pursuant to CPLR §3211(a)(1) and (7). Respondent further claims that the Notice of Petition does not reflect the clerk's endorsement as required by CPLR §3211(a)(1) and (7) and the New York City Court Act. Additionally, Respondent claims that the Petition fails to allege a rental agreement between the parties as required by CPLR §3211(a)(1) and (7) and RPAPL §741(1), (2), and (4). Lastly, Respondent argues for dismissal of the petition pursuant to CPLR §3211 (a)(1) and (7) and RPAPL §741(3) on the grounds that the petition misidentifies the premises.
DISCUSSION
Respondent's motion to dismiss the action is denied in its entirety.
The Court Has Personal Jurisdiction Over the Respondent
Respondent argues that this Court lacks jurisdiction over the Respondent because the Respondent was not served the Notice of Petition and Petition in accordance with New York Real Property Act §735 and Paragraph 65 of the lease agreement between the parties. Petitioner opposes said argument by stating that Defendant's argument is founded in a misreading of the lease.
CPLR §3211 (a)(8) states "a party may move for a judgment dismissing one or more causes of action asserted against him on the ground that......the court has not jurisdiction of the person of the defendant." When opposing a motion to dismiss a complaint pursuant to CPLR §3211 (a)(8) based on lack of jurisdiction, a plaintiff must only make a prima facie showing that personal jurisdiction over the moving defendant exists, with the facts alleged in the complaint to be deemed as true and construed in the light most favorable to the plaintiff and all doubts to be resolved in favor of the plaintiff. Fanelli v. Latman, 2022 N.Y.App. Div.LEXIS 857 (2d. Dep't 2022). The party asserting in personam jurisdiction bears the burden of proof. SYZ Holdings, LLC v. The Brecht Forum, Inc.. 30 Misc.3d 64, (2d. Dep't 2010); Bernardo v. Barrett, 87 A.D.2d 832, 833 (2d. Dep't 1982). 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. Furthermore, the Paragraph 65 of the Lease Agreement (attached as Petitioner's Exhibit D and Respondent's Unlabeled Exhibit), expressly states that communications from Landlord to Tenant shall be deemed sufficiently given or rendered if in writing, delivered to Tenant personally or sent by registered or certified mail.
Respondent argues that Petitioner was required to personally serve Respondent in order for Petitioner to establish jurisdiction. Furthermore, Respondent argues that Petitioner was required to make at least two attempts at personal service in order to satisfy the requirements of conspicuous service. The Petitioner's Affidavit of Service signed by John Olivieri on February 24, 2022 was submitted by both parties (attached as Petitioner's Exhibit F and Respondent's Exhibit B). This affidavit states that on February 23, 2022 at 3:17 PM at 55 Gunton Place, Store 1, Staten Island, NY 10309, Mr. Olivieri personally delivered the Notice of Petition, Commercial Non-Payment Petition, and Notice of Electronic Filing with Chris "Doe". The affidavit further states that John Olivieri knew that Chris "Doe" was an Authorized Party/Managing Agent that was authorized to accept legal papers for the corporation. Additionally, the affidavit states that the documents were also sent via regular and certified mail on February 24, 2022. The affidavit provides a description the person served. Respondent argues that there was no one authorized to accept service at the premise at the day and time stated.
Here, Petitioner's Affidavit of Service does not specifically detail how he knew that Chris "Doe" was an authorized agent of the Respondent. Notably, Respondent simply states that there was no one authorized to accept service at the premise at the day and time stated. Respondent does not elaborate further. Respondent then claims that subsequent attempts at finding an authorized person were needed before mailing the notice and petition. The Court does not agree. Viewing the evidence in the light most favorable to the plaintiff when opposing a motion to dismiss for lack or jurisdiction and viewing any issue of doubt in favor of the plaintiff, the Court finds that Respondent has failed to meet its burden to dismiss the complaint. Under the terms of the lease and under the law, Petitioner is deemed to have properly served Respondent as it has served a person of suitable age and discretion.
The Written Rent Demand is Proper
Respondent argues that the complaint should be dismissed because the Fourteen Day Rent Demand (attached as Petitioner's Exhibit B and Respondent's Exhibit C) is conclusory in that it states that the Tenant owes the Landlord $52,873.80 and provides no further factual detail as to how that amount was reached. Respondent cites CPLR 3211 (a)(1) and CPLR 3211 (a)(7) in support of its argument.
CPLR § 3211(a)(1) and (a)(7) state that a party may move for judgment dismissing one or more causes of action asserted against him on the ground that a defense is founded upon documentary evidence and the pleading fails to state a cause of action.
The Court disagrees with Respondent's argument. A plain reading of the Fourteen Day Rent Demand, delivered on January 21, 2022, indicates the total amount owed for rent and additional rent for the period of September 1, 2021 through January 20, 2022. Furthermore, it indicates an attached Customer Balance Detail from January 20, 2022 that was not included on Respondent's Exhibit C but, was included as part of Petitioner's Exhibit C. Respondent's argument fails to address this clear and unequivocal exhibit of unpaid rent. Furthermore, similar to the Petition and Notice of Petition, the Rent Demand was served properly according to the affidavit of John Olivieri from January 25, 2022 (attached as Respondent's Exhibit C and Petitioner's Exhibit C).
The Notice of Petition Reflects the Clerk's Endorsement
Respondent further argues that Petitioner's claim should be dismissed because the Notice of Petition lacks the endorsement of the Court Clerk as required by the New York City Civil Court Act. The Court does not agree.
As correctly stated by both Petitioner and Respondent, RPAPL §731(1) and the New York City Civil Court Act §401(c) require that a Notice of Petition be duly issued by a judge or clerk of the court. Here, as seen in Respondent's Exhibit A and Petitioner's Exhibit C, the Notice of Petition clearly bears the electronic signature of Alia Razzaq, Chief Clerk, on February 15, 2022 at 5:30 P.M., Richmond County Civil Court Landlord and Tenant Division. Respondent's claim is without merit, Petition Adequately Describes the Rental Agreement/ Landlord Tenant Relationship Between the Parties
Respondent argues that the Petition fails to allege the existence of a rental agreement or landlord tenant relationship between the parties as required by RPAPL §741(1),(2), and (4) and simply claims that the landlord on the lease is not the Petitioner. Once again, the Court disagrees with Respondent's argument.
RPAPL §(I),(2), and (4) details the requirements of a proper petition. Specifically, it states that the petition shall state the interest of the petitioner in the premises from which removal is sought as well as the respondent's interest in the premises and his relationship to the petitioner.
Here, the Petition is clear. As seen in Respondent's Exhibit A and Petitioner's Exhibit C, the Petition states that Rossville Ave., LLC, the Petitioner, is the Landlord of the premises and that the Petitioner is the successor in interest to VCCI Holding Corp. It further details that Respondent is the successor tenant who entered into possession under an Assignment and Assumption of Lease on December 19, 2019 from Portofino Pizza LLC on a lease from August 2014. The plain language of the Petition is clear in that is describes exactly who the parties are, their interest, and relationship.
The Petition Adequately Describes the Premises Sought to be Recovered
Respondent argues that the Petitioner misidentifies the premises sought to be recovered in that the Petition refers to "55 Gunton Place, Store 1" as the address of the premises when the actual address is 55 Gunton Place, Store I.
RPAPL §741(3) requires that a petition describe the premises from which removal is sought. The description of the premises must not be vague, ambiguous, or inaccurate. The description of the premises must be sufficient in detail so that a marshal, when executing the warrant of eviction, may locate unequivocally the precise leasehold premises and effect an eviction without additional information outside the four corners of the petition. New York City Economic Dev. Corp. v. Kings Action Group. Corp.. 2020 N.Y.Misc. LEXIS 565 (Civ. Ct. Kings County 2020) quoting Clarke v. Wallace Oil Co.. 284 A.D.2d 492 (2d. Dep't 2001). An address, even the address contained in the lease, without more specific descriptive language may be insufficient. Id. quoting Sixth Street Community Center, Inc. v. Episcopal Social Services, 19 Misc.3d 114[A] (Civ. Ct. NY County 2008). Therefore, the analysis must focus on the functional relationship of the structure. Id.
Here, the Petition states that the premises sought to be recovered is "55 Gunton Place, Store 1 (1,080 square feet) Staten Island, New York, 10309". No other description is provided. The Court is well aware of the rather unforgiving nature of the controlling caselaw and the strict adherence to specificity in the description of a premises in a petition. The arguments from Petitioner and Respondent essentially result in the question whether the use of the number "1" is a sufficient description of the subject premises. First, it should be noted that despite Respondent's argument that the real address of the premises sought to be recovered is "Store I", Respondent provides no evidence whatsoever that this is in fact the real address. Petitioner, on the other hand, provides Petitioner's Exhibit E, a Department of State, Division of Corporations printout. Petitioner's Exhibit E lists the Respondent's address as "55 Gunton Place, Suite 1, Staten Island, NY, 10309". Although the Court is not permitted to consider any documents outside of the "four corners of the petition", it is unreasonable for the Respondent to now claim that the address is incorrect when it is registered as an LLC under the number "1" as opposed to the letter "I" and that its signed lease references the number "1" and not the letter "I". Again, Respondent provides no documentary evidence to the contrary. The Court believes that viewing said motion in the light most favorable to the non-moving party (Petitioner), there would be no confusion in a marshal's ability to locate the premises and execute a warrant of eviction. Accordingly, Respondent's motion is denied.
Conclusion
Based on the foregoing, Respondent's motion to dismiss is denied. This constitutes the final decision and order of this Court.