JUBILEE INC v. HASLACHA INC (2000)

Order, Supreme Court, New York County (Franklin Weissberg, J.), entered on or about July 15, 1999, which, after a traverse hearing, denied plaintiff commercial tenant's motion for a Yellowstone injunction, and granted defendant landlord's cross motion to dismiss the complaint for lack of jurisdiction, unanimously affirmed, without costs.

This action for Yellowstone relief was properly dismissed on the ground that the order to show cause initiating it was not served in accordance with the order's directive that it be hand delivered to defendant.   Since defendant is a corporation, this required hand delivery to one of its officers, directors or other persons specified in CPLR 311(a) (see, Pinto v. House, 79 A.D.2d 361, 364, 436 N.Y.S.2d 733).   As the motion court held, plaintiff's failure to effect such delivery could not have been due to any resistance by defendant (see, McDonald v. Ames Supply Co., 22 N.Y.2d 111, 115-116, 291 N.Y.S.2d 328, 238 N.E.2d 726;  Austrian Lance & Stewart v. Rockefeller Center, 163 A.D.2d 125, 128-130, 558 N.Y.S.2d 521), there being no indication that anyone associated with defendant even knew of, let alone actively avoided, plaintiff's attempt to serve it at the residential building where defendant maintains an office.   Indeed, plaintiff's process server, a messenger by trade, did not himself know that judicial process was inside the envelopes he was told to deliver.   As the motion court also explained, if the time constraint that the delivery be made by 5:00 p.m. of the day the order to show cause was issued left plaintiff's messenger with no choice but to leave the envelopes with the building's doorman when assertedly denied permission to go upstairs, the fault lies with plaintiff, who waited until the last day of the cure period to apply for a Yellowstone injunction.

MEMORANDUM DECISION.