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KEW GARDENS TERRACE OWNERS CORP v. Ruby Puneet Kesar and Evan Horwell Respondents (undertenants). (2020)

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Civil Court, City of New York.

KEW GARDENS TERRACE OWNERS CORP., Petitioner, v. Supreet MCGRATH and Stephen McGrath, Respondents (tenants), Ruby Puneet Kesar and Evan Horwell Respondents (undertenants).

L & T 61259/19

Decided: February 19, 2020

Law Offices of Alexander C. Pabst, PLLC, Attn: Alexander C. Pabst, Esq., 118-21 Queens Boulevard, Suite 620, Forest Hills, New York 11375, Attorneys for Respondents-Supreet McGrath and Stephen McGrath Baron & Baron,Esqs., P.C., Attn: Kristen A. Mantell, Esq., 118-21 Queens Boulevard, Forest Hills, New York 11375, Attorneys for Petitioner-Kew Gardens Terrace Owners Corp. Ruby Puneet Kesar and Evan Horwell, Self-Represented Litigants

Hon. Sergio Jimenez

Judge, Housing Court

Review of Respondent's motion to dismiss pursuant to CPLR § 3211(8) for lack of personal jurisdiction and Petitioner's cross-motion for summary judgment and for any other relief as the court may deem proper:

Procedural History

Petitioner, Kew Gardens Terrace Owners Corp. (Petitioner), commenced the underlying holdover proceeding by alleged service of the Notice of Petition and Petition in May of 2019. Petitioner brings this proceeding at the behest of the District Attorney alleging illegal use of the premises. Respondents, Supreet and Stephen McGrath, through counsel, now seeks dismissal of the proceeding due to Petitioner's alleged lack of efforts at a reasonable application of RPAPL § 735. The under-tenants, Ruby Puneet Kesar and Evan Horwell, have never appeared in this proceeding. Petitioner opposes and cross-moves seeking summary judgment and a warrant of eviction against the respondent-tenants and a finding of default against the under-tenants. After the motions were fully briefed by both sides, the Court heard argument on the motions on January 15, 2020 and reserved decision.

Respondent's motion to dismiss for defective service

Respondent argues that the petition should be dismissed because the notice of petition and petition were not served as per the requisites of RPAPL § 735. Respondent avers Petitioner knew that they were not residing in the premises, they were in contact with Respondent's counsel even prior to the commencement of the proceeding and took no affirmative steps to find respondent's actual address, which is allegedly in Washington State.

Petitioner opposes the motion stating that they did not have actual knowledge of Respondent's address but did comply with the requirements of RPAPL § 735. While they admit having authorized the sublet, since it was a familial sublet, it was not subject to as rigorous a Board process as would a non-familial sublet.

RPAPL § 735 governs the type of service that must be enacted in order to bring a housing court proceeding in New York City. Both parties agreed as to the facts surrounding the service itself as set forth in the affidavits of service. There is no dispute that service was not sent to Washington state in any capacity. Since there is no factual dispute the Court does not have to hold a traverse hearing. The remaining question before the Court is a legal one: Does the service of the notice of petition and petition on the subject premises confer jurisdiction upon the respondents, whom the Petitioner knew did not reside in the subject premises? The standard of care for RPAPL § 735 service is one of a “reasonable application.” Service cannot be made where it is known it will be futile, that is, it must be reasonably calculated to apprise the respondent of the proceeding. Solak Estates, Inc. v. Goodman, 102 Misc 2d 504 (App. Term, 1st Dept, 1979).

Neither party showed any documentary proof as to Petitioner's knowledge, constructive or actual, of the Respondent's new address. Respondent implies that Petitioner had some notice stemming from the approval of the familial sublet, but fails to provide evidence thereof. Petitioner is silent on the issue of actual notice, though through counsel denies the knowledge. Petitioner's counsel states her office policy with regard to the mailing of courtesy copies, however, this, by itself, would not satisfy the statute. Even if the Court were going to consider this as part of the process, as outlined by RPAPL § 735, there are no specifics mentioned by anyone with personal knowledge, outside of counsel's “recollection,” or documents to back said claim.

Both parties agree that they were in contact regarding the subject matter of this proceeding even prior to its commencement. This furthers the knowledge that the Respondents still held a nexus to the apartment. This nexus discounts the theory that the service to the apartment was futile, since it shows an active interest and awareness of what occurred with regard to the subject premises. With the expectation that someone with a connection to the respondents was actively occupying the premises and that Respondents maintained some control of the premises, the service performed was not futile.

Respondent cites a variety of cases alleging that “reasonable application” would require an inquiry as to the new address. Petitioner counters with a variety of cases that required actual notice before discounting substituted service. Respondent's argument, though rightly discouraging inattentive litigation, is not supported by the law. The reasonable application of service requires a “reasonable expectation of success” in finding a person on the premises to whom delivery may be made. 809-811 Kings Highway, LLC v. Pulse Laser Skin Care, 25. Misc 3d 130(A) (App. Term 2nd, 11th and 13th Jud Dists., 2009); Naman v. Sylveen Realty Co., 222 AD2d 564 (App. Div 2d Dep't, 1995); Joseph v. Lyu, 58 Misc 3d 159(A)(App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018); Doji Bak, LLC v. Alta Plastics, 51 Misc 3d 148(A)(App Term, 2d Dept, 9th & 10th Jud Dists 2016); ZOT, LLC v. Crown Assoc., 22 Misc 3d 133(A), (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009). The key term in this reasonable application is that “a person” who can accept service must be expected to be in the premises. In the instant proceeding, the Petitioner knew that there were sublettors and named them. While the Court has found that service has been deficient when the Petitioner has knowledge that Respondent does not live in the premises, the facts here differ from that situation. See 255 Huguenot Street Corp. v. Rwechungura, 61 Misc 3d 131(A)(App. Term, 2018).

In this proceeding because Respondents still maintained dominion and control over the premises and there were persons of suitable age and discretion living there with a connection to the Prime Respondents, service was proper.

The Court was unable to find any law that required an affirmative obligation on the part of the Petitioner to seek out Respondents' new address in light of what they knew about the apartment. Given the knowledge of the Petitioner that a family member of the Respondents (of suitable age and discretion) resided in the apartment and that the Respondents continued to exert their interest (by hiring counsel to speak about the alleged illegal conduct) in the premises, Petitioner has met their burden on the reasonable application of the service to allow substitute service. In conference, Petitioner claimed that the maintenance bills were sent to the Respondent at the subject premises, but no documentary proof of that was presented into the record.

Respondent's motion is denied because the statute and case law does not require an inquiry as to the party's actual address when effectuating service. Neither party has shown, through documentation, that Petitioner had actual notice of the Respondent's address. As such, the branch of the motion seeking dismissal for failure to properly serve the Petition and Notice of Petition is denied.

Petitioner's request for summary judgment

Petitioner moves for summary judgment stating that the documentation given by the District Attorney's Office combined with the affidavit from the member of the Board of Directors mandates the Court grant a judgment and issue a warrant of eviction. Petitioner seeks summary judgment on the five criminal charges that the Respondent-undertenant faced in criminal court. Specifically, these included the criminal possession of marijuana in the 2nd degree; the growing of a plant known as cannabis by unlicensed person, resisting arrest, criminal possession of a controlled substance in the 7th degree and criminally using drug paraphernalia in the 2nd degree. Petitioner also requests a default judgment against the non-appearing parties.

Respondent opposes the motion stating that Petitioner has not met their burden of proof to receive CPLR § 3212 relief as they are crucially missing the element that the tenant knew or should have known the activities and acquiesced in the alleged illegal drug activity.

To obtain summary judgment the movant bears the burden of proving, by competent admissible evidence, that no material and triable issues of fact exist. See, e.g.,Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [Ct App 1985]. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers.

In the instant matter, the Court cannot grant summary judgment for two reasons. The first is that Petitioner has not shown by a preponderance of credible evidence that “the tenant knew or should have known of the activities.” (See Second Farms Neighborhood HDFC v. Lessington, 31 Misc 3d 144[A][App. Term 1st Dept, 2011]; 855-79 LLC v. Salas, 40 AD3d 553 [2007]; Kings County District Attorney's Office v. Freshley, 608 N.Y.S.2d 788 [Civ. Co. Kings Co, 1993]). Respondents unquestionably do not live in the apartment and live in Washington there has not been enough evidence presented to speak to the knowledge or acquiescence of the named tenants. This remains a question for trial.

Petitioner, using the documents provided by the District Attorney, attempts to show that the under-tenant faced a wide-range of charges, however, he did not plead to all of the charges. As per Petitioner's papers, Respondent only pled guilty to a single charge, an A misdemeanor. It could even be argued that CPL § 160.50 would seal the other charges outside of the one to which the defendant pled guilty, since those charges were dismissed. However, that is not currently before the Court. As such, there remain questions of fact with regard to the other alleged charges. While the defendant, not necessarily the respondents, is estopped from arguing culpability of the charge to which he pled, the rest of the allegations remain unproven. The charging documents do not comprise enough culpability, certainly under the criminal law standard of beyond a reasonable doubt, but even under a lesser civil standard of preponderance of the evidence without more evidence and testimony. In the situation before the bar, there were a variety of charges levied against the undertenant including Class C, D and E felonies as well as five (5) Class A misdemeanors and one (1) Class B misdemeanor. Ultimately, the undertenant, according to the documentation provided by Petitioner, pled guilty to a single Class A misdemeanor. Without a full adjudication of the underlying facts, including the guilty plea and proper analysis of the charging documents, the Court cannot grant such a severe remedy as summary judgment on unsubstantiated charges. As stated above with regard to the element of knowledge or acquiescence of the alleged acts by the proprietary lease holder respondents, the Court does not accept the documents provided to be entitled to CPLR § 3212 relief. As such, the Court will not grant summary judgment with regard to the alleged acts of illegal use.

Notwithstanding that reasoning, the Court also believes that even admitting all of the documents presented in Petitioner's motion, those documents in of themselves do not merit granting CPLR § 3212 relief because the guilty plea does not encompass the range of behavior alleged. Even if the evidence was admitted into the record, the uncontroverted documents themselves do not prove the matters alleged. The simple act of pleading guilty does not, by itself, constitute an admission of guilt to all charges alleged, only of the one pled to. Further, it has been argued by legal scholars that in some situations both the Police and District Attorneys choose to exercise their powerful discretion 1 in order to secure guilty pleas 2 . These exercises of discretion have proven to be wildly successful as upwards of 95% of criminal cases are disposed of through guilty pleas 3 . This is particularly telling where the same conduct can be charged as either a violation, misdemeanor or felony offenses 4 . In fact, during the 1990s, the Police lost a variety of discretion in how to charge low-level cases as part of the “Broken Windows” policing philosophy and the NYPD was instructed by its superiors to charge defendants with the higher options 5 . This discretion has been found to have different effects on different populations, especially those with contacts with courts that predominantly deal with poverty-stricken populations 6 . Due to these various factors, the truth of unsubstantiated charges must be called into question and failing to draw this out in a trial would improperly move this Court into the jurisdiction of Criminal Court.

Petitioner's request for a judgment against the non-appearing parties is denied. Practice in housing court generally dictates that, in holdover proceedings, an inquest be held for a judgment to be granted against non-appearing parties. In nonpayment proceedings, RPAPL § 732(2) is clear on this issue. Brusco v. Braun, 84 NY2d 674 (1994). However, in holdover proceedings, there exists less guidance. Petitioner did not provide enough proof in admissible for their case in chief to be decided through summary judgment. As such, this request is denied, though reserved for trial or further litigation.


Respondent's motion is denied for the reasons set forth above. Petitioner's motion for summary judgment is likewise denied for the reasons set forth above. The proceeding is restored for trial on April 21, 2020 at 9:30am, Part E, room 404. This constitutes the Decision and Order of the Court.


1.   See David Alan Sklansky, The Nature and Function of Prosecutorial Power, 106 Journal of Criminal Law & Criminology 473 (2016) citing Erik Luna & Marianne Wade, Prosecutors as Judges, 67 Wash. & Lee L. Rev. 1413 (2010) and Marc L. Miller, Domination and Dissatisfaction: Prosecutors as Sentencers, 56 Stanford Law Review 1211 (2004)

2.   For an in-depth discussion as to the various tools of discretion prosecutors have at their disposal and its legal background, the Court guides readers towards Andrew Manuel Crespo's The Hidden Law of Plea Bargaining, Columbia Law Review [Vol. 118:1303]. This article tracks the coercive possibilities of charge piling, charge sliding as well as factual, legal and equitable overreaching and how they play a role in securing guilty pleas.

3.   Bureau of Justice Statistics, U.S. Dep't of Justice, Sourcebook of Criminal Justice Statistics 2003, at 418 (Ann. L. Pastore & Kathleen Maguire eds., 2005).

4.   A discussion of how the same conduct can be charged as different levels of criminal culpability is discussed and analyzed by Issa Kohler-Hausmann's Managerial Justice and Mass Misdemeanors, Stanford Law Review [Vol. 66:611 at 637] which compares a hypothetical jumping of a turnstile conduct which can be charged, in New York as either a summons (NY Comp. Codes R & Regs. Tit. 21 §§ 1050.4, 1050.10[2013]), which carries a maximum fine of $25 or ten days in jail or a Class A misdemeanor (NY Penal Law § 160.10 [McKinney 2013]).

5.   N.Y.C. Police Dep't, Police Strategy No. 5: Reclaiming the Public Spaces of New York (1994) which explicitly guided police officers to opt for the higher charges, that the NYPD explicitly increased its preference for full arrests, instead of issuing Desk Appearance Tickets/Summons Tickets.

6.   See Michelle Alexander, The New Jim Crow (2010).

Sergio Jimenez, J.

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