2905 GRAND CONCOURSE REALTY CORP., Petitioner, v. Gabriel ALVAREZ, Respondents.
Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.
Order to Show Cause and Affidavits Annexed 1
Answering Affirmation 2
Supplemental Affirmation & Affidavits in Support 3
After a hearing on the record on April 30, 2019 and upon the foregoing cited papers, the decision and order on this motion is as follows:
BACKGROUND AND PROCEDURAL POSTURE
This non-payment summary proceeding first appeared on the court's calendar on April 8, 2019 on Gabriel Alvarez's, (“Respondent”), post-eviction order to show cause.1 Respondent seeks restoration to the premises known as 2905 Grand Concourse, Apt. H, Bronx, NY 10468, (“subject premises”). 2905 Grand Concourse Realty Corp., (“Petitioner”), opposes.
On April 8, 2019 the matter was adjourned to April 11, 2019 for a hearing and for Respondent to have possible representation. On April 11, 2019, Respondent retained counsel and the matter was adjourned to April 18, 2019 with the court directing supplemental papers (by Respondent) be served by April 15, 2019 and opposition served by 12 p.m. on April 18, 2019. On April 18, 2019 the court heard argument on the motion and issued an order setting the matter down for a hearing on two issues: whether the process server properly attempted and completed substitute service of the petition and notice of petition on January 9, 2019 2 and, if service was found to be proper, whether Respondent has sufficient good cause to be afforded the opportunity to reinstate the tenancy.3
A hearing was held on April 30, 2019. In addition to the named parties, the court allowed a Mr. Peter Vataj 4 to participate with his own counsel. Mr. Vataj is the purported new leaseholder for the subject premises.
THE APRIL 30, 2019 HEARING
THE PROCESS SERVER
The court first heard from Mr. El-Baraa M Aksar who was duly sworn in. Mr. Aksar testified to the following: He is a licensed process server 5 who has been serving process for about two years. He went to the subject premises on January 8, 2019, rang a bell to the subject apartment, received no answer, was granted access to the building by another tenant, and proceeded to the subject apartment. He states he knocked at the door, received no response, waited approximately two minutes and left. On January 9, 2019, he described the same process except, after waiting two minutes, he proceeded to post the papers to the apartment door. He testified that later that day he personally did the mailings to the premises.6 Mr. Aksar's log book was accepted into evidence over Respondent's objection as Petitioner's 3 as his contemporaneously created business record kept in the normal course of his business as a process server. A photo of the front of the subject building was accepted into evidence as Petitioner's 4 based on Mr. Aksar's testimony that he took the photo with his own phone and that it showed a fair and accurate representation of what the front of the building looked like at the time the image was taken.7
During voir dire of the log book, Respondent's counsel argued that the records contained therein were not reliable as they did not clearly indicate whether the type of service performed was personal or substitute. In the court's view, this, even if true,8 is not a reason to disqualify the record but might go to what weight the court affords the entries therein.
On cross-examination, Mr. Askar testified he has never received a citation from the Department of Consumer Affairs. Although the January 9, 2019 service is recorded on page 10 of the log book, the court granted Respondent's counsel leave to review page 11 of the log-book to search for discrepancies in Mr. Aksar's entries. Respondent makes several arguments in an effort to discredit Mr. Aksar and/or his records. Firstly, Respondent's counsel noted, and the court confirmed, that none of the service attempts memorialized on page 10 of the log book ended with personal service, or upon a person of suitable age and discretion. Respondent next showed that the entries do not definitively state what manner of service was effectuated (whether personal or suitable age and discretion or conspicuous place). Respondent also alleges that the stated times between services as recorded in the log-book are too incredible to be believed.
As to the lack of service upon any individual, the court notes the attempts of service were all made between 10:25 a.m. and 11:59 a.m. on a Wednesday morning. In other words, Mr. Aksar's attempts on January 9, at least as memorialized on page 10 of his log-book, all took place during normal business hours when many people might be expected to be at work. This court has no information on whether the other services were attempted on working persons. However, Respondent has previously informed the court that both he and his significant other work during the day. As such, it is expected they would not have been at home at 10:25 a.m. on January 9, 2019. At most, the failure to find an individual to accept service 11 times in the course of one day during normal business hours is a statistical anomaly. As to the log-book not stating definitively what kind of service was performed, this court notes no one, including Respondent, alleges confusion by Mr. Aksar's entries. The absence of the words “personal, substitute,” or “conspicuous” may be important if there were indicia of intent to deceive. However, the entries all clearly indicate, upon a reasonable review, conspicuous place service.9
As to the times between services, Mr. Aksar testified that he drives to each service and double parks. The log book shows the service after the one in question here was accomplished only eight minutes later at another building. This court notes that the distance between the addresses is 0.6 miles by car and that a mapquest.com search shows that it can be traveled in approximately 2 minutes in light traffic.10 The following service was at 3535 Rochambeau Avenue 8 minutes after the 3128 Villa Avenue service. The court notes that the distance between 3128 Villa Avenue and 3535 Rochambeau Avenue is approximately 0.9 miles and a mapquest.com search indicates it can be traveled by car in five minutes in “heavy” traffic.11
Mr. Aksar was a credible witness. While his record keeping could be more precise, his testimony, as well as Petitioner's 4, reveal that he went to the premises when the affidavit of service alleges he did and that he completed conspicuous place service as required by law. In addition to Mr. Aksar's testimony, Respondent confirmed that the hallway colors are pink as noted in the log-book entry. The times between services, though questioned by Respondent, appear reasonable. Respondent did not challenge the alleged mailing in any way during the course of the hearing. As such, the preponderance of the evidence supports a finding that service was effectuated pursuant to RPAPL § 735. (F.D.I.C. v. Evangelista, 226 AD2d 208, 641 NYS2d 19 [1st Dept 1996]).
Respondent asked the court to consider Barr v. Department of Consumer Affairs, (70 NY2d 821, 523 NYS2d 435 ), arguing it requires a finding that Mr. Aksar and/or his log lacks credibility. The court disagrees. In Barr, the process server's license was suspended due to “inaccurate and evidently false records.” (Barr, 70 NY2d at 823). The Barr court further states, “a process server whose records were illegible, inaccurate and otherwise plainly unreliable lacks credibility.” (id). The testimony and evidence here do not show “inaccurate or false” or “illegible” records. Also see, Landmark Capital Investments, Inc. v. Li-Shan Wang, (94 AD3d 418, 941 NYS2d 144 [1st Dept 2012] (“The detailed description of the service attempts on defendant and of the interior of defendant's building supported the determination that the process server was credible. Although the process server was under investigation for improper record keeping by the Department of Consumer Affairs, the relevant portions of the record support the finding that his version of facts was accurate”).
Respondent testified that he has lived at the premises approximately four (4) years. He now resides with a Racquel Paredes 12 , his significant other, along with two children, ages 1 and 12. He acknowledged at the time of the eviction he owed “5K.”13 He states he learned about the eviction taking place on April 4, 2018 when a neighbor informed him that the Marshal was at the premises. On cross-examination, Respondent acknowledged he has only been a tenant of record since August 2018. He confirmed that the hallway color outside of his apartment is pink. He alleges he told the landlord on April 4, 2019 that he could get the money that was owed, but also acknowledged he only had $ 3000 immediately available at the time. He knew he was behind on rent at the time of the eviction.
Respondent presented no testimony about his whereabouts on January 9, 2019. He did not state non-receipt of the pleadings on his apartment door. He presented no testimony about non-receipt of the pleadings by mail. Respondent presented no testimony about his alleged non-receipt of the marshal's notice. Respondent represented that he had $ 6000 available to tender to the landlord. However, when the court inquired if Respondent had the funds in court, he responded he did not. There was no testimony about why Respondent had fallen behind on the rent, especially so quickly after receiving a lease in his name.14 And although he acknowledged knowing he was behind on the rent, there was no testimony given regarding any efforts to obtain the funds prior to the eviction. There was no testimony about Respondent's or his family's ties to the apartment and the community.
THE LANDLORD—JOHN RALUSHAJ
The court next heard from John Ralushaj, the purported landlord. Mr. Ralushaj stated he is the owner of the corporate entity that owns the building. He testified he is at the subject building from Monday to Friday each week. He also confirmed that the building's halls are pink. He acknowledged that Respondent became the tenant of record in August 2018. He alleged no payment was offered on the day of the eviction. He alleged that Respondent was ‘always late’ with his rent, not just by days, but by 1 to 2 months. The court notes that Respondent was not called on rebuttal to dispute Mr. Ralushaj's characterization of the late payments. Mr. Ralushaj acknowledged on cross-examination that Respondent had been in the apartment with the prior tenant of record for approximately two (2) years, if he had to guess.
PETER VATAJ—NEW LEASHOLDER
Mr. Vataj testified he spoke to Mr. Ralushaj a couple of months ago, with the conversation centering on if ‘something coming,’ meaning an apartment becoming available, the landlord should let him know. Mr. Vataj acknowledged he has an apartment currently, but that it is in Westchester County, approximately forty-five minutes from his business. He alleges his business is only half a mile away from the subject premises which makes the subject apartment more convenient, if not a necessity. Mr. Vataj stated the landlord told him in April that an apartment would be available. Mr. Vataj entered a lease between him and Petitioner dated April 4, 2019 into evidence. He also entered copies of 2 money orders dated April 3, 2019 purporting to pay security and April's rent. The money orders are payable to Petitioner. On cross-examination, Mr. Vataj first stated he signed the lease at the time he made the payments, then he was unsure. When asked what date he had made the payments, Mr. Vataj replied he did not know the date. Mr. Vataj's recollection was apparently refreshed when he saw the dates on the money orders. Although Respondent's counsel was laying the foundation to allege the lease may have been signed when a stay was in effect, the court confirmed that the Order to Show Cause was signed after 5 P.M. on April 4, 2019 and that it also was apparently not served on Petitioner's counsel.15
As stated above, the court was tasked to determine the propriety of the January 9, 2019 service of process. Based on Mr. Aksar's and Gabriel Alvarez' testimony and the exhibits in evidence, the court finds that service was appropriate particularly in light of Respondent's failure to provide any detail disputing service. (See Bank of America, N.A. v. Budhan, 2019 NY Slip Op 03139 [1st Dept 2019]). The court is also tasked with determining if there is good cause to afford Respondent the opportunity to reinstate the tenancy. The court is permitted, in appropriate circumstances, to vacate a warrant of eviction and return a tenant to possession even after the warrant has been executed. (Matter of Brusco, 84 NY2d 674, 682, 621 NYS2d 291 ). A determination as to whether good cause exists is entrusted to the sound discretion of the court upon review of the particular facts and circumstances presented. (102—116 Eighth Ave. Assoc. v. Oyola, 299 AD2d 296, 749 NYS2d 724 [1st Dept 2002]).
The circumstances here do not favor restoration. In Parkchester Apartments Co. v. Scott, 271 AD2d 273, 274, 707 NYS2d 55 [1st Dept 2000], restoration was appropriate where, 63—year—old tenant notwithstanding recent illness, made appreciable payments towards the judgment and, while a tenant for 20 years, had apparently had no prior delinquency record and, prospectively, had arranged for automatic withdrawal of monthly rent from his bank account. (See e.g., 117 W 142, LLC v. Villanueva (51 Misc 3d 149[A], 2016 NY Slip Op 50811[U][App Term, 1st Dept 2016]) (good cause to permanently stay execution of the warrant of eviction found to be present where factors included “the indigent tenant's prompt and diligent efforts to obtain the funds, the bureaucratic delays in obtaining governmental and charitable grants, as well as the delay caused by landlord, who initially entered judgment in an amount greater than the arrears actually owed”)).
This court must consider many factors including the length of the tenancy, the nature of the default, whether good faith efforts have been made to obtain the funds, the presence of children at the apartment, etc. As to length of the tenancy, this factor does not weigh in Respondent's favor as he had only been a tenant for 8 months when the warrant executed (a little over 4 months when the case commenced). (See Archstone Camargue I LLC v. Korte, 40 Misc 3d 103, 104, 971 NYS2d 642 [App Term, 1st Dept 2013] (court within its right to preserve 30-year tenancy); 541-543 West 150th Street LLC v. Allen, 60 Misc 3d 127(A), 2018 NY Slip Op 50928(U) [App Term, 1st Dept 2018] (Court providently exercised discretion to preserve 16-year tenancy)). Respondent presented no testimony or evidence of why he fell behind in the rent or of efforts he made to secure the rent, (see Lafayetter Boynton Hsg. Corp. v. Pickett, 135 AD3d 518, 519, 23 NYS3d 204 [1st Dept 2016]), which he acknowledged he owed at the time of the eviction. There was no proof offered that temporary loss of employment, (see 2203 Belmont Realty Corp. v. Gant, 51 Misc 3d 140(A) [App Term, 1st Dept 2016], for example, or an illness had prevented Respondent from making rental payments, (see 45 Pinehurst Ave Realty Co. v. Landa, 58 Misc 3d 130(A) [App Term, 1st Dept 2017] (long-term tenancy and illness as factors in restoring tenancy)). There was no testimony or proof provided to assure the Petitioner and the court that Respondent could pay future rent. In short, the sole factor in Respondent's favor is the presence of 2 minor children, yet the court did not hear any testimony regarding their ties to the apartment and neighborhood (i.e. schools or daycare attended, doctors they visit, other family nearby).16 Respondent's offer to pay the arrears and legal fees after the eviction does not constitute good cause. (Sherwood Complex, LLC v. Dunn, 24 Misc 3d 136(A), 2009 NY Slip Op 51497(U) [App Term, 2nd Dept 2009]; Chelsea 19 Associates v. James, 67 AD3d 601, 889 NYS2d 564 [1st Dept 2009]).
In balancing the equities between the parties, restoration is not appropriate in this case. (See Parkchester Apartments Co. v. Heim, 158 Misc 2d 982, 983—984, 607 NYS2d 212 [App Term, 1st Dep't 1993]; see also, e.g., Oyola, supra (affirming vacatur of a warrant and restoration of a tenant to possession “under the facts and circumstances of record”)). Under the circumstances, the court need not address Mr. Vataj's position that he would be harmed by restoration of Respondent's tenancy.17
Based on the foregoing, it is So Ordered, Respondent's order to show cause is denied in all respects. All stays are vacated. This constitutes the Decision and Order of the court.
1. A default judgment was signed on March 4, 2019 and warrant of eviction issued March 12, 2019.
2. The court limited the hearing to the January 9, 2019 attempt at service because Respondent's April 15, 2019 affidavit makes a conclusory denial of receipt of papers on the first attempt (when no papers would have been left). (Bank of America, N.A. v. Budhan, 2019 NY Slip Op 03139 [1st Dept 2019]).
3. See April 18, 2019 Order.
4. Mr. Vataj was previously referred to as Mr. Vat based on Petitioner's counsel's representations. See the April 8, 2019 Order.
5. Mr. Askar's license (#2067547) was accepted into evidence as Petitioner's 1 without any objection.
6. A certified mail receipt date stamped January 9, 2019 from a USPS Briarwood Station addressed to Respondent was accepted into evidence as Petitioner's 2 without any objection.
7. The time stamp on the photo indicates it was taken on January 9, 2019 at 10:25:05 A.M.
8. The court notes that upon a cursory review of the log-book, it is easily discernable whether service was personal or substitute.
9. See General Business Law § 89-cc(j).
10. https://www.mapquest.com/directions/from/us/new-york/bronx/10468-1900/2905-grand-concourse-40.871529,-73.889572/to/us/new-york/bronx/10468-1303/3128-villa-ave-40.875328,-73.887067. Accessed on May 1, 2019 at 12:05 p.m.
11. https://www.mapquest.com/directions/from/us/new-york/bronx/10468-1303/3128-villa-ave-40.875328,-73.887067/to/us/new-york/bronx/10467-1301/3535-rochambeau-ave-40.882725,-73.879242. Accessed on May1, 2019 at 12:15 p.m.
12. Ms. Paredes submitted an affidavit in support of the order to show cause but did not appear to testify.
13. Petitioner alleges $ 5222.75 due in rental arrears through April 2019. Respondent did not dispute this figure.
14. The petition is dated December 26, 2019.
15. When prompted, Respondent stated he did not serve the attorney. The court file also includes a note on April 8, 2018 that “service of OSC waived.”
16. While some of this information was stated in Mr. Alvarez' and Ms. Paredes' April 15, 2019 affidavits, the information provided therein is entirely conclusory. In this court's view, it was incumbent upon Respondent to show “good cause” at the hearing as the court directed in its April 18, 2019 Order.
17. Mr. Vataj, concededly, has not taken possession of the premises and continues to have another apartment in Westchester. The application to join “Peter Vat” pursuant to CPLR § 1001 is denied as moot.
Shorab Ibrahim, J.
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