1ST AVE. OWNERS v. RIVERWALK

• Decision Date: 15 November 2004
• Citation: 784 N.Y.S.2d 844,6 Misc.3d 439
• Parties: FIRST AVENUE OWNERS CORP., Petitioner,<BR>v.<BR>RIVERWALK GARAGE CORP., Respondent.
• Court: New York Civil Court

6 Misc.3d 439

784 N.Y.S.2d 844

FIRST AVENUE OWNERS CORP., Petitioner,

v.RIVERWALK GARAGE CORP., Respondent.

November 15, 2004.

Rosen & Livingston, New York City (Bruce A. Cholst of counsel), for petitioner.

David Rosenholc & Associates, New York City (David H. Prichard of counsel), for respondent.

OPINION OF THE COURT

CYNTHIA S. KERN, J.

Petitioner has commenced the instant nonpayment summary proceeding against the respondent based upon the respondent's alleged failure to pay rent for the premises located at 340 East 80th Street. It moves for partial summary judgment dismissing respondent's first and second jurisdictional defenses and respondent's second, fourth, sixth, seventh and eighth affirmative defenses. At oral argument, respondent agreed to withdraw its second affirmative defense. Respondent cross-moves for summary judgment dismissing the petition. For the reasons set forth below, petitioner's motion and respondent's cross motion are granted to the extent of dismissing respondent's first jurisdictional defense and sixth, seventh and eighth affirmative defenses and setting the matter down for a traverse as to the issue of service of the petition and notice of petition only.

Respondent seeks dismissal of this action on the ground that petitioner re-served the notice of petition and petition in this action after it already filed an initial affidavit of service with the court. The lease in this action required that service of the petition and notice of petition be made at respondent's address specified on the first page of the lease. When petitioner initially served respondent with the petition and notice of petition, it failed to mail a copy to respondent at the address specified on the lease. Instead, petitioner mailed a copy of the papers to an alternate address. Petitioner realized its error after it filed its affidavit of service. Rather than commencing a new action, petitioner served the papers again and mailed them to the correct address specified under the lease and then filed a second affidavit of service.

The issue raised by respondent's cross motion is whether petitioner is permitted to re-serve papers in the same action after it has already filed an initial affidavit of service with the court. RPAPL 735 (2) provides that:

"The notice of petition, or order to show cause, and petition together with proof of service thereof shall be filed with the court or clerk thereof within three days after: . . .

"(b) mailing to respondent, when service is made by the alternatives above provided, and such service shall be complete upon the filing of proof of service."

There is no case law addressing the issue of whether the RPAPL permits a petitioner to re-serve a petition and notice of petition in order to cure a defect in service after it has already filed an initial affidavit of service with the court. There is case law, however, addressing the issue of whether re-service is permitted under CPLR 308 (2), which contains an analogous service provision. CPLR 308 (2) provides that with respect to personal service, "proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effectuated later; service shall be complete ten days after such filing." The courts have held that it is proper for a plaintiff to re-serve a summons and complaint in order to cure defects in service so long as the statute of limitations has not expired and that such re-service does not constitute commencement of a second action. (See Dashew v Cantor, 85 AD2d 619 [2d Dept 1981]; Messina v County of Nassau, 147 Misc 2d 889 [Sup Ct, Nassau County 1990].) The same reasoning applies under the RPAPL as the CPLR. The petitioner should be permitted to re-serve the petition and notice of petition under the RPAPL as the statute of limitations has not yet run and there was a defect in the initial service which petitioner was required to cure. Accordingly, respondent's cross motion to dismiss for improper service on the ground that petitioner re-served the petition and notice of petition is denied.

Petitioner moves to dismiss respondent's first jurisdictional defense which alleges that the rent demand was never served on respondent. It is well established that the affidavit of a process server constitutes prima facie evidence of proper service. (See Hinds v 2461 Realty Corp., 169 AD2d 629 [1st Dept 1991].) The mere denial of receipt of service is "insufficient to rebut the presumption of proper service created by a properly-executed affidavit of service." (De La Barrera v Handler, 290 AD2d 476, 477 [2d Dept 2002].) A conclusory denial not accompanied by "further probative facts" does not require a traverse hearing. (American Sav. & Loan Assn. v Twin Eagles Bruce, 208 AD2d 446 [1st Dept 1994].)

In the instant action, the court finds that petitioner has met its burden of establishing proper service of the rent demand on respondent. The petitioner's process server Bryan McElderry states in his affidavit of service that he served the rent demand upon respondent by delivering and leaving a copy with a person employed at the premises. The affidavit of service put forth by petitioner constitutes prima facie evidence of proper service of the rent demand. Respondent's conclusory allegation that it was not served with the rent demand is insufficient to rebut the presumption of proper service. Respondent's first jurisdictional defense is therefore dismissed.

Petitioner moves to dismiss respondent's second jurisdictional defense which alleges that the petition and notice of petition were not properly served on respondent. In support of its motion to dismiss the jurisdictional defense, petitioner submits the affidavit of its process server Bryan McElderry. The process server states that he served respondent by delivering and leaving a copy with a person employed at the premises. Respondent contends that it was not properly served because the person petitioner served was not aware that he was being served with process and refused to accept service. In support of its position, respondent submits the affidavit of Adam Nunez who states that he was in the garage on the two dates that petitioner's process server attempted to serve the petition and notice of petition. Mr. Nunez states that the process server never identified himself as a process server and never told Mr. Nunez that he came to deliver legal papers. He also states that he refused to sign for the papers and that the process server then threw the papers on the floor and walked out. Mr. Nunez claims that he left the papers on the floor and does not know what happened to the papers.

RPAPL 735 (1) provides that:

"Service of the notice of petition and petition shall be made by . . . delivering to and leaving personally with a person 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."

The language of RPAPL 735 does not require that the person served consent to accept service. (RPAPL 735; see Manhattan Embassy Co. v Embassy Parking Corp., 164 Misc 2d 977 [Civ Ct, NY County 1995].) A refusal to accept service will not vitiate a substitute service under RPAPL 735. (Id.) Service may be made on a party who refuses to accept service by leaving the papers in the general vicinity of the person to be served. (See Bossuk v Steinberg, 58 NY2d 916 [1983]; Colonial Natl. Bank, U.S.A. v Jacobs, 188 Misc 2d 87 [Civ Ct, NY County 2000].) However, the person being served must be made aware that he is being served with process. (See Bossuk v Steinberg, 58 NY2d at 918; Colonial Natl. Bank, U.S.A. v Jacobs, 188 Misc 2d at 89-91.) The court finds that there are disputed issues of fact as to whether petitioner's process server adequately informed Adam Nunez that he was being served with process and that the petition and notice of petition were being left in his vicinity for redelivery to respondent. The mere fact that Adam Nunez states that the process server attempted delivery of the petition and notice of petition on the wrong date does not invalidate his entire affidavit. Accordingly, a traverse hearing is necessary to determine whether the petition and notice of petition were properly served.

In the event that the traverse hearing is resolved in petitioner's...