974 Anderson LLC v. Davis

Decision Date14 December 2016
Docket NumberNo. 10721/2016.,10721/2016.
Citation48 N.Y.S.3d 266 (Table)
Parties 974 ANDERSON LLC, Petitioner–Landlord, v. Manuel Lora DAVIS "John/Jane Doe", Respondent–Tenant.
CourtNew York Civil Court

Green & Cohen, PC, New York, for Petitioner.

Bart Mayol, Esq., Bronx, for Respondent Sully Manuel Lora a/k/a Sully Manual Lora Davis.

Goriyda Lora Davis, Respondent Pro Se.

DIANE E. LUTWAK, J.

Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of the Respondent's Motion to Dismiss the Petition and Grant Attorneys' Fees:

Papers Numbered
Notice of Motion With Attached Affirmation, Affidavit and Exhibits A & B 1
Affirmation and Affidavit in Opposition 2
Reply Affirmation With Exhibits A & B 3

Upon the foregoing papers, the Decision and Order on this Motion are as follows:

BACKGROUND & PROCEDURAL HISTORY

This is a holdover proceeding brought by petitioner-landlord 974 Anderson LLC against the occupants of Apartment # 5F at 974 Anderson Avenue, Bronx, New York. Prior to the commencement of the proceeding, Petitioner by its managing agent Eleanor Patrick served a predicate "Ten (10) Day Notice to Quit" dated December 16, 2015 on the occupants of the premises, named as Manuel Lora Davis and "John/Jane Doe", advising them "that it has been discovered that Manuel Lora Davis and/or ‘John/Jane Doe have been residing there, that "no permission was given to said occupants to occupy the subject premises," that the occupants "have unlawfully intruded into and/or squatted upon" the premises without the landlord's permission, that no rent has ever been accepted, that the occupants were required to vacate the premises on or before February 8, 2016 and that summary eviction proceedings would be instituted if they failed to do so. The affidavit of service of the Ten Day Notice alleges that it was served on all respondents, after a prior unsuccessful attempt at personal service, on January 28, 2016 at 9:39 pm, by affixing a copy for each occupant on the entrance door to the premises on January 29, 2016 at 10:38 am and sending additional copies to each of them by certified and first-class mail.

Thereafter, Petitioner commenced this holdover proceeding by filing a petition with this court on February 16, 2016, dated February 9, 2016, seeking a final judgment of possession, issuance of a warrant of eviction and use and occupancy. The Petition alleges that respondents Manuel Lora Davis and/or "John/Jane Doe" are "currently occupying the premises without the permission of the landlord and have squatted upon the apartment." The affidavit of service of the Holdover Notice of Petition and Petition, which was filed along with the Notice of Petition on February 25, 2016, alleges that it was served on all respondents, after a prior unsuccessful attempt at personal service on February 23, 2016 at 9:09 am, by affixing a copy for each occupant on the entrance door to the premises on February 24, 2016 at 6:03 am and sending additional copies to each of them by certified and first-class mail.

A review of the documents in the court file and notations on the court file jacket indicates the following chronology. On the initial return date of March 3, 2016 the case was adjourned to April 8, 2016 with the notation "Ambulance called". On April 8, 2016 the case was adjourned to May 10, 2016 with the notation "APS Ref & GAL". The court file contains an "APS Housing Court Referral" form for 92–year–old Goriyda Lora, with an address at the subject premises, and lists her son as "Manuel Lora Davis", a household member who "appeared in court on behalf of [her]". The form notes that Ms. Lora is homebound, "blind, non-ambulatory, deaf" and has other health problems. Although the form is undated, it references a "Return Date" in court of May 10, 2016. The court file also contains an Order dated April 18, 2016 appointing Angelo R. Picerno as guardian ad litem ("GAL") for Goriyda Lora and adjourning the case to May 31, 2016. On May 10, 2016, a notation on the court file jacket indicates that the case was adjourned to June 22, 2016 at 2:30 pm for trial, with the additional notation: "GAL to contact ward".

On May 31, 2016, a Stipulation signed by Mr. Picerno as GAL and by an attorney from Green & Cohen for Petitioner adjourned the case to June 22, 2016 at 2:30 pm for trial. On June 22, 2016 Mr. Picerno submitted a written answer on behalf of his ward asserting a "General Denial". A notation on the court file jacket dated June 22, 2016 indicates that the case was adjourned to June 24, 2016 for the tenant of record to appear. An Affidavit of Unavailability With Request for Adjournment which was completed in the name of "Manuel Lora Davis" on June 23, 2016 and signed by "Sully M Lora" indicated that he would be unavailable from June 24 through June 28. On June 24, 2016 the case was adjourned to July 15, 2016. On July 11, 2016 the court received an Affirmation of Engagement by fax from the GAL Mr. Picerno, indicating that he was not available to appear on July 15 and requesting an adjournment. On July 15 the court issued a Decision/Order "over the strenuous objection of Petitioner's counsel" adjourning the case to August 8, 2016 for settlement or trial and noting that both the GAL for Goriyda Lora and Manuel Lora Davis had submitted documentation of unavailability. On August 8, 2016 the case was adjourned again to September 12, 2016 with the notation that no interpreter was available.

On September 12, 2016 the court conferenced the case with Petitioner's attorney from Green & Cohen, Mr. Picerno as GAL for Goriyda Lora, and, with the assistance of a Spanish-language court interpreter, Respondent, who identified himself initially as "Sully Manuel Lora" and asserted that his name was stated incorrectly in the court papers. Upon questioning by the court, notations of which appear on the court file jacket and the recording of which has been reviewed by the court, Respondent explained that his full name is "Sully Manuel Lora Davis", with "Davis" being the last name of his mother's father, and that his mother's full name is "Goriyda Lora Davis". Mr. Lora Davis explained that his mother is 93 years old and has numerous health problems: she is blind, deaf, cannot walk, and has diabetes. Mr. Picerno requested to be relieved as GAL as, despite his diligent efforts, Mr. Lora Davis had not allowed him to have access to his mother. The court issued an Order dated September 12, 2016 granting the GAL's request to be relieved, adjourning the case to October 18, 2016 for trial and re-referring "Jane Doe"/Goriyda Lora Davis to Adult Protective Services. On October 18, 2016 attorney Bart Mayol filed his Notice of Appearance on behalf of "Manuel Lora" and the case was adjourned to November 22, 2016 for trial. In the meantime, Mr. Mayol filed a motion to dismiss on November 4, 2016, returnable November 22, 2016. Petitioner's counsel served and filed an Affirmation in Opposition on November 22, 2016 and the court adjourned the case to December 9, 2016 for argument, with reply due by December 1, 2016.

In his affidavit in support of his motion, Respondent asserts that his name is "Sully Manuel Lora", not "Manuel Lora Davis" as is listed in the caption of the petition, and moves to dismiss the petition under CPLR 3211(a)(2) for lack of subject matter jurisdiction, under CPLR 3211(a)(8) for lack of personal jurisdiction and under CPLR 3211(a)(10) for failure to name a necessary party. Respondent does not claim that he was not served; his claim is that he was not personally served and that he was not named properly in either the predicate notice or the Notice of Petition and Petition.

Petitioner opposes Respondent's motion by asserting that it is untimely, and that in any event there is no basis for dismissal under CPLR 3211(a)(2), (a)(8) or (a)(10) as Petitioner"after a diligent search"—determined the identity of one of the occupants to be "Manuel Lora Davis" and/or "John Doe" and that accordingly he was sufficiently identified and properly named as a party in both the predicate notice and the court papers, which were properly served by "conspicuous service". Petitioner also objects to the interposition of an answer by Respondent, and notes that Respondent's notice of motion does not seek leave of court to interpose an answer, and the answer which is annexed to the moving papers is not even mentioned in the supporting affirmation and affidavit.1

DISCUSSION

Respondent's arguments all stem from his claim that he was not named correctly in the predicate notice and caption of the court papers and that he was not personally served with any of those papers. More specifically, Respondent's arguments are: First, that this court lacks subject matter jurisdiction because he "was not personally served nor was he properly named in the predicate notice". Affirmation in Support at ¶ 3. Second, that this court lacks personal jurisdiction based upon the claim that Petitioner "failed again to name and personally serve Sully Manuel Lora at the subject premises." Affirmation in Support at ¶ 4. Finally, Respondent argues that Petitioner has failed to name and serve a necessary party. These arguments are all unavailing.

There is no requirement that respondents in summary eviction proceedings be personally served. Under RPAPL § 735(1), where personal or substituted service cannot be obtained upon "reasonable application", a permissible manner of service upon an individual is 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", followed by sending additional copies by regular and certified mail. See, e.g., Eight Assocs. v. Hynes (102 A.D.2d 746, 476 N.Y.S.2d 881 [1st Dep't.1984], aff'd, 65 N.Y.2d 739, 492 N.Y.S.2d 15 [1985] ). This type of service, known as "conspicuous place" or "nail and mail" service, also applies to service of the predicate ten-day notice to quit which is required in proceedings brought...

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