Ilfin Co., Inc. v. Benec Industries, Inc.
| Decision Date | 17 June 1982 |
| Citation | 114 Misc.2d 411,451 N.Y.S.2d 643 |
| Parties | ILFIN COMPANY, INC., Petitioner, v. BENEC INDUSTRIES, INC., et al., Respondents. |
| Court | New York City Court |
Dennis Paul Elkin, Brooklyn, for respondent, Benec Industries, Inc.
Barry R. Feerst, New York City, for respondent, Robert Race.
Lindenbaum & Young, P. C., Brooklyn (Steven B. Sperber, Brooklyn, of counsel), for petitioner.
The issue of apparent first impression that I must resolve on this traverse is whether service of process under Real Property Actions and Proceedings Law (RPAPL) Section 735 is properly effected against one co-tenant of commercial premises by service of the petition and notice of petition upon an employee of another co-tenant at the same premises?
Three co-tenants share an office suite at 300 Park Avenue. Two of the tenants are lawyers engaged in separate practices; the third co-tenant is a business (Benec Industries, Inc.).
Two of the co-tenants, Benec Industries, Inc. and attorney Feerst were properly served. The issue here is whether attorney Robert Race was properly served.
The landlord claims that service of the papers upon Race was effected by personally serving them upon one Edward Tristram, a technical writer employed by Benec Industries, Inc. at the 300 Park Avenue office location and by mailing a copy of the papers by regular first class and certified mail to the respondent, one day later. There is no contention that the mailing was done improperly. It appears that Tristram has never been employed by tenant Race.
Race contends that the service upon him was improper under RPAPL Sec. 735 because Tristram is not employed by him nor authorized to accept service of process for him. Race has accordingly moved to dismiss the petition.
RPAPL Sec. 735 in pertinent part states:
The petitioner argues that since the papers were served upon a person who is employed at the property sought to be recovered, service should be sustained. The respondent contends that, where, as here, the landlord apparently knew that the respondents were maintaining three distinct businesses, the statute cannot be read in so literal a manner that would permit service upon anyone employed at the premises sought to be recovered. He asserts that "employed at the property" in this context must be read as employed at the property by the particular co-tenant for whom service is intended.
While there is logic in the respondent's position, the presumption has not been overcome that statutes are intended to be construed as written and that an omission is just as deliberate as an express provision. McKinney's Statutes, Secs. 74, 94. A court should be hesitant to add new terms and limitations to a statute. The petitioner's interpretation is in accord with this principle.
Nevertheless, although Tristram was employed at the premises, I hold that service upon him was improper to effect service upon attorney Race, because Tristram was not a person of suitable age and discretion, as is required by RPAPL Sec. 735. Whether or not the employee served is the employee of the person sought to be served is relevant in determining whether he was a person of "suitable age and discretion". Service of process is intended to afford notice to a party of an impending action or proceeding. Where...
To continue reading
Request your trial
-
City of New York v. Chemical Bank
...Co., 22 N.Y.2d 111, 291 N.Y.S.2d 328, 238 N.E.2d 726 (building receptionist not employed by defendant); Ilfin Co. Inc. v. Benec Industries Inc., 114 Misc.2d 411, 451 N.Y.S.2d 643 (employee of corporate co-tenant); see also Joyce v. Bauman, 11 N.J.Misc. 237, 165 A. 425 (illiterate maid); but......
-
City of New York v. Wall Street Racquet Club, Inc.
..."a person of suitable age and discretion who ... is employed at the property to be recovered". (But cf. Ilfin Co., Inc. v. Benec Indus., Inc., 114 Misc.2d 411, 413-414, 451 N.Y.S.2d 643 finding an employee of another corporation sharing the office not to be a "person of suitable age and The......
-
Manhattan Embassy Co. v. Embassy Parking Corp.
...is calculated to adequately and fairly apprise the respondent of an impending lawsuit." (See, Ilfin Co. v. Benec Indus., Inc., 114 Misc.2d 411, 413, 451 N.Y.S.2d 643 [Civ.Ct., N.Y. County 1982]. Accord, 50 Court St. Assocs. v. Mendelson & Mendelson, 151 Misc.2d 87, 572 N.Y.S.2d 997 [Civ.Ct.......
-
SYZ Holdings, LLC v. Brecht Forum, Inc.
...intended, would be one of suitable age and discretion. Their relationship to each other is simply too remote" ( Ilfin Co. v. Benec Indus., 114 Misc.2d 411, 413, 451 N.Y.S.2d 643 [Civ. Ct., N.Y. County 1982, Saxe, J.]; see also Robbins Fulton Corp. v. Bergen Tile of Brooklyn, Inc., NYLJ, Jun......