YB ASSOCIATES LLC v. MOUNT VERNON SOCIAL ADULT DAY CARE CENTER LLC (2018)

In this commercial nonpayment proceeding, respondent/tenant moves for an order to vacate the warrant of eviction and judgment in favor of the landlord, and dismissing the petition on the ground of improper service of the petition.

The respondent executed a lease in August of 2013 with the petitioner, which was amended three times, for a portion of the building known as 22 East First Street, Mt. Vernon, New York. It is undisputed that the respondent has not been able to occupy the space, due to the inability to obtain a Certificate of Occupancy. The parties acknowledge that they are currently working towards obtaining the Certificate of Occupancy.

In this action, the petition and notice of petition were served by conspicuous place service. After tenant failed to appear in court on December 19, 2017, a default final judgment was entered and a warrant issued. Thereafter a seventy-two hour notice was served and respondent brought the instant order to show cause.

The affidavit of service indicates that service was made by conspicuous place service after two attempts had been made to serve tenant at the premises on consecutive days, one at 3:25 p.m. and the other at 11:50 a.m. In support of the motion to vacate the default final judgment and dismiss the petition, tenant's officer averred, among other things, that the premises were unoccupied at the time service was attempted and, additionally, that landlord's representatives were aware that the tenant's headquarters is located at c/o Oleg Rubin, 16 Downer Avenue, Scarsdale, New York 10583. Tenant relies on a Demand letter that was sent by petitioner's attorney on October 24, 2017 to the respondent's Scarsdale address in support of its contention that petitioner knew of its principal place of business. Landlord did not dispute these assertions, but argues that the lease and amendments thereto do not designate or mandate any such alternative Scarsdale address for service upon respondent. Landlord therefore argues that since no alternative address for service upon respondent is delineated in the lease agreement nor in the amendments thereto, service at the subject premises was good and proper service in accordance with the law and the provisions of the RPAPL.

Pursuant to RPAPL 735, conspicuous-place service is permitted only where the landlord has attempted personal or substituted service and failed after having made a “reasonable application,” which requires that there is “at least a reasonable expectation of success in finding a person on the premises to whom delivery may be made” (809–811 Kings Hwy., LLC v. Pulse Laser Skin Care, 25 Misc 3d 130[A], 2009 NY Slip Op. 52121[U], [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009] [internal quotation marks omitted]; see Naman v. Sylveen Realty Co., 222 AD2d 564, 565 [1995] ). In this court's view, under the circumstances presented, landlord's attempts did not constitute a “reasonable application” (see Doji Bak, LLC v. Alta Plastics, 51 Misc 3d 148(A) [ App Term, 2d Dept., 9th and 10th Jud Dists 2016] ); ZOT, LLC v. Crown Assoc., 22 Misc 3d 133[A], 2009 NY Slip Op. 50215[U], [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; 30–40 Assoc. Corp. v. Destefano, NYLJ, Mar. 5, 2003, at 18, col 6 [App Term, 1st Dept 2003]; 91 Fifth Ave. Corp. v. Brookhill Prop. Holdings LLC, 51 Misc 3d 811, 2016 NY Slip Op. 26059 [Civ Ct, NY County 2016] ).

Accordingly, tenant's motion to vacate the default judgment and warrant of eviction is granted, and the petition is dismissed.

This constitutes the Decision and Order of this Court.

The court considered the following papers in this matter: Order to Show Cause, dated January 12, 2018, Exh. A–C; Affirmation in Opposition, dated January 25, 2018, Exh. A–D; and Affirmation in Reply, dated January 31, 2018.

Adrian N. Armstrong, J.