16 Lincoln Square Associates v. Amrep Corp.

• Decision Date: 08 August 1985
• Citation: 129 Misc.2d 697,493 N.Y.S.2d 692
• Parties: 16 LINCOLN SQUARE ASSOCIATES, a Partnership, Petitioner-Landlord, v. AMREP CORPORATION, 16 West 61st Street, Entire Seventh (7th) Floor, New York, New York 10023, Respondent-Tenant. North American Legal Systems, Inc., Respondent-Undertenant.
• Court: New York City Court

Page 692

493 N.Y.S.2d 692

129 Misc.2d 697

16 LINCOLN SQUARE ASSOCIATES, a Partnership, Petitioner-Landlord, v. AMREP CORPORATION, 16 West 61st Street, Entire Seventh (7th) Floor, New York, New York 10023, Respondent-Tenant North American Legal Systems, Inc., Respondent-Undertenant.

Civil Court of the City of New York New York County.

Aug. 8, 1985.

Finkelstein, Borah, Schwartz, Altschuller & Goldstein, P.C., New York City, for petitioner-landlord.

Jacobs, Persinger & Parker, New York City, for respondent.

GEORGE E. WADE, Jr., Judge:

Petitioner commenced this holdover proceeding to recover premises leased to Respondent and in addition demands payment for use and occupancy as of February 1, 1985 in the amount of $16,666.66 per month, along with legal fees, costs and disbursements.

Respondent moves to dismiss the holdover petition or, alternatively the demand for money damages on the ground that the demised premises have been delivered to Petitioner and further that the Court has not obtained personal jurisdiction over it sufficient to sustain a claim for a money judgment in this summary proceeding.

FACTS

The attorneys have stipulated upon the record that the Respondent was served by conspicuous place service at the premises herein. Both attorneys agree that such service would not ordinarily, without an appearance in the proceeding by the Respondent, support an award of a money judgment for rent in arrears.

In the Petitioner's affirmation in Objection to Respondent's motion to dismiss, Petitioner alleges that since the Respondent has participated in the proceeding by appearing and adjourning the matter; by entering into negotiations with respect to a settlement and by surrendering possession of the premises, he has in fact waived any claim as to lack of inpersonam jurisdiction. Petitioner further argues that a copy of the Notice of Petition and Petition was conspicuously affixed to the Respondent's place of business and subsequent thereto, copies were sent by certified and ordinary mail to the Respondent at the premises sought to be recovered.

Respondent in its Reply Affidavit alleges that it appeared on March 1, 1985 to seek an adjournment on consent and informed Petitioner that if it refused to consent Respondent would make an application to the Court. Respondent alleges that Petitioner consented and that thereafter both parties entered into settlement negotiations, with Respondent advising Petitioner that if an agreement could not be reached it would move to dismiss for lack of jurisdiction. Respondent submits that its only appearance in this action was by moving to dismiss the Petition for lack of jurisdiction, and as such the Court has not obtained personal jurisdiction over it sufficient to permit entry of a money judgment in Petitioner's favor.

LAW

It is settled law, that CPLR Section 101 governs procedures in civil proceedings in all courts ... except where the procedure is regulated by "inconsistent statute." Likewise, Section 204 of the Judiciary Law Court Act of the New York City Civil Court Act has jurisdiction over summary proceedings to recover possession and to render judgment for rent due. With this established, the Court herein must disagree with the holding in Schwartz v. Power Conversion, 115 Misc.2d 217, 453 N.Y.S.2d 989 (1982), wherein that Court expressly noted its doubt as to whether CPLR Section 320 applied to summary proceedings, for there is nothing within RPAPL Article 7 inconsistent therewith. Consequently, this Court finds that CPLR Section 320 governs the methods whereby a party to a summary proceeding is deemed to have made an appearance and thus submitted to personal jurisdiction of the Court. The methods as prescribed by CPLR 320 for making a "formal appearance" are (1) appearance by serving an answer or; (2) by serving a notice of appearance or; (3) by serving a motion which has the effect of extending the time to answer. A fourth method though not described as a "formal appearance" but rather an "informal appearance," which has arisen through case law, is where the party appears and participates as a genuine actor...