FPKT, LLC v. Paradise Pillows, Inc., 2005 NY Slip Op 51790(U) (NY 11/4/2005)
| Decision Date | 04 November 2005 |
| Docket Number | 76864/05 |
| Citation | 2005 NY Slip Op 51790(U) |
| Parties | FPTK, LLC, Petitioner, v. PARADISE PILLOWS, INC., Respondent. FPTK, LLC, Petitioner, v. PARADISE PILLOWS, INC., Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Petitioner was represented by Steven E. Ginsberg, Esq. of Wenig, Ginsberg, Saltiel & Greene LLP, and Respondent was represented by Bruce A. Feldman, Esq.
Was service properly made on a commercial tenant pursuant to RPAPL §735, when attempts at personal delivery at the premises were made late on a Friday afternoon, a Saturday, and the second day of Passover, with affixation on the final attempt, while the business was closed in observance of the Jewish Sabbath and a holy day? If the landlord had reason to know that the business was likely to be closed at those times, service was not proper.
These two commercial holdover proceedings were commenced with Petitions and Notices of Petition that are identical except for the description of the premises to be recovered. In Action No. 1, the premises are described as: "All rooms Ground Floor at 94 Thomas Street, at the corner of Porter Avenue." In Action No. 2, the premises are described as: "All rooms Part of Ground Floor facing Flushing Avenue and Porter Avenue located at 1087 Flushing Avenue." Each Petition alleges that FPTK, LLC, the owner and landlord of the respective premises, terminated the tenancy of respondent Paradise Pillows, Inc., effective May 31, 2005, with separate Notices of Termination of Tenancy dated April 22, 2005. The Notices are signed "Landlord, FPTK, LLC / By: A Simkowitz for Guardian Realty."
Each of the Petitions is accompanied by an Affidavit of Service sworn to on April 26, 2005 by licensed process server Steven D. Stewart. The Affidavit in Action No. 1 asserts that attempts were made to personally deliver the Notice of Termination at the premises on April 22, 2005 at 3:50 p.m., on April 23, 2005 at 11:30 a.m., and on April 25, 2005 at 9:10 a.m.; that, finding no person on the premises, the Notice was affixed to the entrance door; and that, on the following day, the Notice was mailed to Respondent at the premises by certified mail and regular first class mail. The Affidavit in Action No. 2 is identical except for one-minute differences in the times of the attempts and affixation. April 22 and April 23 were a Friday and Saturday, and, the parties agree, April 25 was the second day of Passover, a day in the Jewish calendar with significant religious and cultural meaning.
In each proceeding, Respondent filed a Verified Answer asserting various Affirmative Defenses, including challenges to service of the Petition and the predicate Notice of Termination, followed by a Motion to Dismiss on those grounds. The motions are supported by Affidavits of Freddy Halfon, an officer of Respondent, in which, among other things, he states as to the Notices of Termination: (See Affidavits of Freddy Halfon dated July 28, 2005, ¶6.)
In separate Decision / Orders dated September 14, 2004, the Court granted the motions, only to the extent of scheduling a hearing on September 21 on whether the respective Notices of Termination were properly served. The motions were otherwise denied, the Court having concluded that Respondent did not make a sufficient showing to warrant a hearing on its defense of lack of personal jurisdiction. (See Chemical Bank v. Darnley, 300 AD2d 613, 614-14 [2d Dept 2002]; Remington Investments, Inc. v. Seiden, 240 AD2d 647, 647 [2d Dept 1997].)
The hearing was held as scheduled. Because the Respondent did not challenge the factual assertions in the Affidavits of Service, it was not necessary for the process server to testify to establish the dates and times of affixation and the attempts at personal delivery. Neither party called the process server to testify for any other purpose. Without prejudice to either party's position as to evidentiary burdens, Petitioner presented the testimony of Chaim Simkowitz, an officer of Guardian Realty, and Respondent presented the testimony of Freddy Halfon, the officer of Respondent whose Affidavits were submitted on the motions. At the conclusion of the hearing, the parties were invited to make post-hearing submissions, and each party did so.
Petitioner contends that Respondent "bore the burden of proving that he is an observant Jew by a preponderance of the evidence, [but] failed to offer facts sufficient to support shielding him on religious grounds from otherwise valid process." (Petitioner's Post-Hearing Memorandum at 10.) (Although Respondent is a corporation, Petitioner's and Respondent's submissions refer to Mr. Halfon as "Respondent", and use personal pronouns accordingly.) As will appear, the Court agrees only to the extent that, in these proceedings, Respondent bears the burden of coming forward with evidence that Petitioner had reason to know that the business was likely to be closed when affixation and the attempts at personal delivery were made. But Petitioner bears the burden of persuasion that the Notices of Termination were properly served.
The parties agree, at least for purpose of these motions, that Respondent occupies the subject premises as a month-to-month tenant, and that Petitioner was required to serve its Notices of Termination in a manner permitted by RPAPL §735. (See RPL § 232-a.) Service of the Notices as required was a condition precedent to Petitioner's right to possession of the premises and commencement of these summary proceedings. (See Chinatown Apartments, Inc. v. Chu Cho Lam, 51 NY2d 786, 788 [1980]; 170 West 85th Street Tenants Association v. Cruz, 173 AD2d 338, 339 [1st Dept 1991]; Henry and Baltic Associates v. K & Q Food Corp., 7 Misc 3d 83, 85 [App Term, 2d Dept 2005].)
Generally, the burden of proving the occurrence or satisfaction of a condition precedent is usually on the party who is seeking to enforce the right or obligation so conditioned. (See Curtis Properties Corp. v. Greif Companies, 212 AD2d 259, 265 [1st Dept 1995].) Moreover, the burden of proof is often said to follow the burden of pleading (see Prince, Richardson on Evidence, §3-209 at 120 [Eleventh Ed. Farrell]), and Petitioner was required to plead facts constituting the proper service of the Notices of Termination or, as it did here, attach copies of the Notices and Affidavits of Service to the Petitions. (See Lorenzo v. Rivera, 132 Misc2d 591, 592 [Civ Ct, Kings County 1986]; Margolies v. Lawrence, 67 Misc2d 468, 470 [Civ Ct, NY County 1971].)
As will appear, Petitioner has made a prima facie showing of proper service of the Notices of Termination with Affidavits of Service that assert facts as to service that indicate compliance with RPAPL §735. The statute permits service by affixation and mailing, if, after "reasonable application", admittance to the subject premises cannot be obtained and a suitable person found to receive the document(s). (See RPAPL §735[1].) It becomes Respondent's burden then to come forward with evidence that service was not proper. If Respondent does so, the Court must determine whether Petitioner has established by a preponderance of the evidence that service was proper.
Before addressing compliance with RPAPL §735(1), the Court notes that both parties make reference to General Business Law §13, which provides that "[w]hoever maliciously procures any process in a civil action to be served on Saturday, upon any person who keeps Saturday as holy time, and does not labor on that day...is guilty of a misdemeanor." Service of "any process" in violation of the statute would be void. (See Martin v. Goldstein, 20 AD 203, 205 [4th Dept 1897]; Hirsch v. Zvi, 184 Misc2d 946, 947 [Civ Ct, Kings County 2000]; see also Matter of Kushner, 200 AD2d 1, 2 [1st Dept 1994]; Chase Manhattan Bank, N. A. v. Powell, 111 Misc2d 1011, 1012-13 [Sup Ct, Nassau County 1981].) Although the statute speaks of "process", service of a statutory notice of termination in violation of its terms would likewise appear to be void. (See Di Perna v. Black, 187 Misc 437, 439 [App Term, 1st Dept 1946] [].)
But, because "it was the design of the Legislature to punish only such persons as intentionally, that it, maliciously, annoy and vex any class of citizens who religiously observe any part of the week as 'holy time' " (Martin v. Goldstein, 20 AD at 208), the statute's application to nail-and-mail service upon a corporation is far from clear. Service in that manner requires that no person be present to be "annoy[ed] or vex[ed]", and any presumption that might arise in the case of personal delivery from knowledge that the person served "keeps Saturday as holy time, and does not labor on that day" (see Hirsch v. Zvi, 184 Misc2d at 748) would evaporate if affixation and attempted delivery are knowingly made at a place of business where no one is likely to be present. In short, General Business Law §13 is concerned with the consequences of making personal delivery, not the failure to make personal delivery.
Respondent contends that "Petitioner, through its agent, Guardian Realty, had prior knowledge that the Respondent was an observant Jew and observed the Jewish Sabbath and Jewish holidays...including the first two-days of Passover." (Respondent's Post-Hearing Submission at 2.) Petitioner agrees that "if the owner (and the process server to whom the owner's knowledge is imputed) knows that the intended respondent is an observant Jew..., then Saturday service would not be in 'good faith' and would not count towards reasonable application", but that "the respondent's testimony...
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