Opinion
6247/05.
Decided December 5, 2005.
Respondent Jasper Holding LLC moved for an order vacating the default orders of May 3, 2005 and May 20, 2005 and the judgment entered on August 23, 2005 and directing petitioners to provide continuous access to respondent to correct the repairs.
Petitioners, residents at 883 Hart Street, commenced this proceeding by order to show cause on or about April 18, 2005. Petitioners' certified mail receipt, which is stapled to the order to show cause and verified petition in the court file, reflects that petitioners' mail was addressed to respondent Jasper Holding LLC at 35-32 159th Street, Flushing. Petitioners also presented a green return receipt card with a signature acknowledging receipt of the mail which was stamped by the post office on April 21, 2005. An order to correct the violations contained in the violation summary report dated April 25, 2005 for Apt. 3R was entered on default on May 3, 2005. Respondent, Department of Housing and Development's (hereinafter HPD) affidavit of service reflects that service of a copy this order and the notice of violation was made by mail to respondent Jasper Holding LLC at the aforementioned address on May 4, 2005. Subsequently, an order to correct the violations contained in the violation summary report dated May 11, 2005 for Apt.2R was entered on default on May 20, 2005. The affidavit of service reflects that HPD served a copy of this order and the notice of violation on respondent Jasper Holding LLC by mail on May 23, 2005.
Petitioners then moved by order to show cause to restore this case to the calendar for a compliance hearing and assessment of civil penalties. The order to show cause was returnable on August 23, 2005. Petitioners served the order to show cause on respondent Jasper Holding LLC by certified mail at the same Flushing address they used previously, and petitioners also presented the green return receipt which bears a signature indicating delivery to the addressee. A default judgment was entered in the amount of $61,365.00 upon respondent's failure to appear on August 23, 2005.
Respondent Jasper Holding LLC states that its address changed, and it never received any notice of the initial court date in this proceeding. Further, respondent claims that it was not aware of any violations. Respondent asserts that a previous HP proceeding was discontinued on April 4, 2005, just weeks before the instant proceeding was commenced. Respondent contends that it attempted to change the building registration information in February 2005. In support of this contention, respondent submitted a copy of a check from Dakko Property Management Inc. dated February 17, 2005 made payable to "NYC Commissioner of Finance" with the memo indicating "883 Hart Street, BK, registration fee". It appears from the markings on the copy of the back of the check that this check was cashed on April 5, 2005. Respondent also submitted a copy of one page of the registration form on which its business address is stated as 587 Beck Street, Bronx, NY. In his affidavit in support of the order to show cause, Emmanuel Ku, a member of respondent's corporation, claims that after his office moved he attempted to change the subject building's multiple dwelling registration. However, Mr. Ku states that he was unsuccessful until his attorney wrote to HPD. However, the attorney's letter submitted did not reference the subject building, but referred to two other properties. Mr. Ku also claims that he could not determine who signed the certified mail receipts.
In opposition, HPD states that respondent Jasper Holding LLC has failed to establish excusable default. HPD points out that respondent fails to state when the address change took place, and that Mr. Ku does not state that respondent no longer receives mail at the Flushing address. HPD asserts that respondent also does not state that it did not receive the subsequent mailings to the Flushing address. Further, HPD states that the current registration on the subject building was not signed until July 19 and was not registered until August 3, 2005. HPD also asserts that respondent's claim about settling a prior proceeding does not constitute a meritorious defense to the instant proceeding, and points to the fact that many of the repairs contained in a stipulation between the parties dated February 28, 2005 under Index No. HP 6162/04 are recorded as violations in the inspection reports dated April 25, 2005 and May 11, 2005.
Pursuant to CPLR § 5015 (a) (1) a party seeking to vacate a default must show excusable default and a meritorious defense (see Titan Realty Corp. v. Schlem, 283AD2d 568, 2nd Dept. 2001). Both respondent's excuse and meritorious defense rest on its claim that it did not receive the order to show cause and petition, and did not know that the violations existed. Petitioners' certified mail receipts and green return cards with signatures create a presumption that respondent received the mailings (see Bingham v. RyderTruck Rental Inc. 110 AD2d 867, 2nd Dept. 1985 Ryder Metropolitan Life Insurance v. Young, 157 Misc 2d 452, 1993, Winfield v. C C Trucking, NYLJ 8/5/03, p25, col 3).
Therefore, the question becomes whether respondent has offered sufficient proof to rebut the presumption created by the certified mail receipts. Respondent has presented a copy of a check and one page of a registration form as proof that it attempted to change its address on the multiple dwelling registration. However, DHPD presented a copy of a registration form signed by respondent's owner and managing agent in July 2005, and DHPD's registration records reflect that there was a new registrationfor the subject building, effective August 3, 2003. Pursuant to Housing Maintenance Code § 27-2100, no filing fee is required to amend the registration statement to change the owner's address. In addition, pursuant to Housing Maintenance Code § 27-2098 (c) no new filing fee is required for the filing of a supplemental registration. Therefore, it is unclear what respondent's check to DHPD represents. The violation summary report of May 11, 2005 names Emmanuel Ku as the managing agent and the registration form signed by respondents in July 2005 names Dakko Property Mgmt. Inc. and John Tsevedos as managing agent. It is also unclear if respondent's purported filing with DHPD in February 2005 relates to a change of managing agent. Respondent submitted no proof of notification to petitioners of a managing agent's change of address as required pursuant to § 26-517 of the Administrative Code of the City of New York. In addition, respondent presented nothing to show that the United States Postal Service was notified of the change of address which would have effectively foreclosed delivery of mail to the Flushing address.
Determination of the sufficiency of an excuse lies in the sound discretion of the court ( see Matter of Garbadella v. Ortov Light, 218 AD2d 494 (2000). Respondent's copies of its check and registration form do not establish that respondent changed its address and did not receive petitioners' mailings. Respondent's proof that its address changed is insufficient to support its claim and its' mere denial of receipt is insufficient to rebut the presumption (see Morales v. Yaghoobian, 13 AD3d 424, 2nd Dept. 2004). Therefore, respondent has not met its burden to show excusable default and the motion is denied. This matter is restored to the calendar in Part B on January 5, 2006 to schedule access dates.
This constitutes the decision and order of this court.