126 Spruce Street, LLC v. Club Central, LLC

Decision Date16 February 2007
Docket NumberSP 44/07.
Citation2007 NY Slip Op 27064,15 Misc.3d 538,830 N.Y.S.2d 506
Parties126 SPRUCE STREET, LLC, Petitioner, v. CLUB CENTRAL, LLC, Respondent.
CourtNew York District Court

Ezratty, Ezratty & Levine, LLP, Westbury, for respondent.

Kenneth J. Weinstein, Garden City, for petitioner.

OPINION OF THE COURT

SCOTT FAIRGRIEVE, J.

Petitioner 126 Spruce Street, LLC has commenced this nonpayment proceeding to recover the sum of $692,158.45 from respondent Club Central, LLC concerning the rental of the property located at 126 Spruce Street, Cedarhurst, New York.

Various motions have been made by the parties. Respondent moves to dismiss the petition pursuant to CPLR 3211 (a) (1), (7). Respondent claims that service of the notice of petition and petition were served on or before January 3, 2007. Therefore, this proceeding, which was held on January 16, 2007, violated RPAPL 733 (1) which requires that service be made between 5 and 12 days before the return date of the summary proceeding.

Petitioner cross-moves for sanctions against respondent claiming that the motion to dismiss violated CPLR 2214, which requires that it be served at least eight days prior to the return date. The notice of motion was served on January 15, 2007, which is one day before the return date of the nonpayment proceeding.

Additionally, petitioner seeks sanctions because the affidavits of service submitted in this case "presumptively establish[ ] service was properly made on January 4, 2007, 12 days prior to the return date of January 16, 2007." Therefore, petitioner claims that the allegation of improper service is without merit and subjects the respondent to sanctions.

Respondent filed a paper titled cross motion. Said opposition also requested an award of legal fees, costs and sanctions for petitioner's alleged frivolous conduct. Respondent states that the notice of motion was timely made pursuant to CPLR 406 which allows a motion to be "made on little or no notice [as] it is made returnable at [the] same time as petition" (citing Goldman v McCord, 120 Misc 2d 754 [1983], and 50 E. 191st St. Assoc. v Gomez, 148 Misc 2d 560 [1990]).

Respondent attacks the affidavit of service of Kevin Miller who allegedly served respondent by delivering the papers to Cara Roberts on January 4, 2007 at 3:55 P.M. at 33 Arnold Court, East Rockaway, New York, and who is "managing agent of the corporation and authorized to accept service." Respondent points out that the affidavit of service was filed with the court on January 4, 2007, at 3:26 P.M., and yet the affidavit of service shows that service was effected at 3:55 P.M. on January 4, 2007. The court notes that this scenario is impossible.

Respondent further attacks the service because service was not made at the premises sought to be recovered; service was made at 33 Arnold Court, East Rockaway, and not at the leased premises of 126 Spruce Street, Cedarhurst.

Service is also attacked because service on Cara Roberts as a managing agent is not authorized by CPLR 311-a and respondent cites Stuyvesant Fuel Serv. Corp. v 99-105 3rd Ave. Realty (192 Misc 2d 104) for support of this argument.

This court disagrees with respondent that service must be made at the premises sought to be recovered. In Daniel Finkelstein and Lucas A. Ferrara, Landlord and Tenant Practice in New York § 14:146 (at 14-87 n 1 [West's NY Prac Series, vol F]), the following is written:

"Methods of service—Personal service—Where personal service may be made

"Generally, personal delivery of the Notice of Petition and Petition may be made wherever the respondent, or an authorized representative, may be found."

"Rodney Company N.V., Inc. v Riverbank America, N.Y.L.J., 10/7/97, p. 26, col. 5 (Civ. Ct., N.Y. County) (`It is immaterial that [personal] delivery occurred . . . [at a location] other than the premises sought to be recovered. RPAPL § 735 does not require that personal delivery . . . occur in a specific place . . . .')." (Id. at n 1.)

3 Dolan, Rasch's Landlord and Tenant—Summary Proceedings, states that personal service is accomplished by personally delivering the notice of petition and petition to the respondent (see § 42:5, at 81 [3d ed] ["Personal Service," wherein Judge Dolan writes: "Under the Real Property Actions and Proceedings Law, service of the notice of petition and the petition may be made by personally delivering them to the respondent. This constitutes personal service. Although filing proof of service is required, personal service is complete immediately upon personal delivery to the respondent"]).

In G & L Building Corp. v Oceanside Karate, Inc. (NYLJ, Jan. 20, 1999, at 34, cols 5, 6 [Nassau Dist Ct]), the court stated that personal service upon a respondent can be made anywhere and there is no requirement that the papers be served at the property sought to be recovered "Under RPAPL § 735, personal service is complete immediately upon personal delivery to the respondent, although proof of filing is required. 3 Rasch, New York Landlord and Tenant-Summary Proceedings Sec. 42:5, at 81 [3d ed]. Therefore, no additional mailing requirements are required pursuant to RPAPL § 735 (1) when service is accomplished via personal delivery.

"In addition, RPAPL § 735 (1) does not require personal delivery be made upon the respondent in any specific location. Rodney Company N.V., Inc. v Riverbank America, 10/7/97 N.Y.L.J. at 26 (Col. 5). Only substituted service and conspicuous service require the initial delivery to be made at the premises sought to be recovered. RPAPL § 735 (1)."

The court disagrees with respondent that service upon Cara Roberts is ineffective service to obtain...

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8 cases
  • ex rel. Leo v. Stanley
    • United States
    • New York Supreme Court
    • July 29, 2015
    ...be made on little or no notice as long as they are made returnable at same time petition to be heard]; 126 Spruce St., LLC v. Club Cent., LLC, 15 Misc.3d 538, 539, 830 N.Y.S.2d 506 [Dist.Ct., Nassau County 2007] [same]; see also Matter of Jordan, 38 A.D.3d at 338, 833 N.Y.S.2d 8 [late servi......
  • Article 70 of the CPLR for A Writ of Habeas Corpus, the Nonhuman Rights Project, Inc. ex rel. Hercules & Leo v. Stanley
    • United States
    • New York Supreme Court
    • July 29, 2015
    ...be made on little or no notice as long as they are made returnable at same time petition to be heard]; 126 Spruce St., LLC v. Club Cent., LLC, 15 Misc.3d 538, 539, 830 N.Y.S.2d 506 [Dist.Ct., Nassau County 2007] [same]; see also Matter of Jordan, 38 A.D.3d at 338, 833 N.Y.S.2d 8 [late servi......
  • Pappalardo v. Madison Square Garden Co., Index No. 159563/2014
    • United States
    • New York Supreme Court
    • October 5, 2015
    ...claim that" Brian "Jones" "is the Managing Agent authorized to accept service" for National (see 126 Spruce Street, LLC v. Club Cent., LLC, 830 N.Y.S.2d 506, 15 Misc.3d 538 [NY. Dist.Ct 2007] distinguishing Stuyvesant Fuel Service Corp., supra where the affidavit of service, stating that "C......
  • ex rel. Leo v. Stanley
    • United States
    • New York Supreme Court
    • July 29, 2015
    ...may be made on little or no notice as long as they are made returnable at same time petition to be heard]; 126 Spruce St., LLC v Club Cent., LLC, 15 Misc 3d 538, 539 [Dist Ct, Nassau County 2007] [same]; see also Matter of Jordan, 38 AD3d at 338 [late service of motion in special proceeding......
  • Request a trial to view additional results
1 books & journal articles
  • A. Introduction to Summary Proceedings Introduction to Summary Proceedings
    • United States
    • New York State Bar Association Practical Skills: Residential Landlord-Tenant Law & Procedure (NY) IV Conveying the Tenancy
    • Invalid date
    ...Laws ch. 514; see Byrne v. Padden, 248 N.Y. 243, 247 (1928).[779] Byrne, 248 N.Y. at 248.[780] 126 Spruce St. LLC v. Club Central LLC, 15 Misc. 3d 538, 830 N.Y.S.2d 506 (Dist. Ct., Nassau Co. 2007).[781] CPLR 401.[782] CPLR 403(a); see also RPAPL 731(1).[783] CPLR 402; RPAPL 731(2); Lincoln......

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