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63 WEST LLC, Plaintiff, v. Konrad BICHER, Defendant.
In this action to enforce provisions of a residential lease, plaintiff, 63 West LLC, previously obtained on default injunctive relief, a judgment, and contempt sanctions against defendant, Konrad Bicher. Bicher now moves to vacate his default under CPLR 5015 (a) (4) and to dismiss the action for lack of personal jurisdiction under CPLR 3211 (a) (8). The motion is granted.
From 2015 to 2019, Bicher leased an apartment from 63 West.1 The terms of the lease barred short-term rentals of the premises on platforms such as Airbnb and required consent from 63 West to any other sublet. 63 West has claimed that Bicher has repeatedly rented out the premises on Airbnb in violation of his lease.
63 West brought this action in July 2019, seeking injunctive relief barring Bicher from continuing to violate the lease by undertaking further short-term rentals of the premises, and seeking the costs (including attorney fees) of enforcing the relevant lease provisions against him. 63 West also brought on a motion by order to show cause seeking injunctive relief to enforce the lease's prohibition on short-term rentals. (See NYSCEF No. 15.) 63 West served the complaint, order to show cause, and supporting documents on Bicher by “nail-and-mail” service under CPLR 308 (4). (See NYSCEF No. 16.)
Bicher did not appear, respond to the complaint, or oppose the preliminary-injunction motion. In August 2019, this court granted the requested injunction on default and without opposition. (See NYSCEF No. 17.) In December 2019, 63 West moved for contempt sanctions against Bicher for violating the preliminary injunction. (See NYSCEF No. 20.) Two days later, 63 West also moved for a default judgment against Bicher. (See NYSCEF No. 32.) In January 2020, this court granted the motion for contempt on default and without opposition, and directed plaintiff to settle order (see NYSCEF No. 46); and this court granted the default-judgment motion, again on default and without opposition (see NYSCEF No. 47).2
In November 2021, Bicher moved to vacate the default judgment against him, to dismiss the action altogether under CPLR 3211 (a) (8) for lack of personal jurisdictions, and for sanctions. (See NYSCEF No. 62.) In opposing the motion, 63 West sought sanctions of its own against Bicher.3 Bicher's motion to vacate and to dismiss is granted; the parties’ respective requests for sanctions are denied.
I. Bicher's Motion to Vacate Default Judgment and Dismiss the Action
Bicher's motion to vacate and to dismiss is based on what he contends is lack of personal jurisdiction due to bad service of the initiating papers (and preliminary-injunction motion) in July 2019.
A. 63 West's Threshold Arguments in Opposition to the Motion
In opposing the motion, 63 West raises two threshold arguments. Neither persuades. First, 63 West contends that a CPLR 5015 motion to vacate must be supported by a showing of a reasonable excuse and meritorious defense, and that Bicher's motion must be denied for failing to provide that showing. 63 West's contention is incorrect. A reasonable excuse/meritorious defense showing is required for a motion to vacate under CPLR 5015 (a) (1) based on an excusable default; but it is not required for a motion to vacate under CPLR 5015 (a) (4) for lack of jurisdiction. (See Harkless v. Reid, 23 A.D.3d 622, 622-623, 806 N.Y.S.2d 214 [2d Dept. 2005].)
Second, 63 West contends that regardless of service, Bicher waived any challenge to personal jurisdiction by including a request for sanctions in its motion to vacate. But when a defendant both asserts a jurisdictional defense and seeks other relief, no waiver occurs as long as the defendant's request for relief is sufficiently related to plaintiff's claims against defendant. (See Dinicu v. Groff Studios Corp., 215 A.D.2d 323, 323, 626 N.Y.S.2d 800 [1st Dept. 1995].) Bicher's request for sanctions is, for waiver purposes, “inextricably linked to and arise out of the same set of transactions or occurrences as plaintiff's claims” against Bicher (id.), because Bicher seeks sanctions based on assertedly false statements made by 63 West's counsel in obtaining a preliminary injunction against Bicher. (See NYSCEF 58 at ¶¶ 53-61.) This is different from Bicher's “taking affirmative advantage of the court's jurisdiction” to obtain unrelated relief against 63 West. (Textile Technology Exch., Inc. v. Davis, 81 N.Y.2d 56, 59, 595 N.Y.S.2d 729, 611 N.E.2d 768 .)
B. The Merits of Bicher's Challenge to the Validity of Service
On the merits, this court agrees with Bicher that 63 West's initial service of process on Bicher was invalid and that this court lacks personal jurisdiction.
As noted above, 63 West served Bicher by nail-and-mail. This form of substituted service is permitted under CPLR 308 (4) only where “service under paragraphs one and two cannot be made with due diligence.” 63 West contends that its process server acted with due diligence because he attempted service under CPLR 308 (1) and (2) on three different days, one of which was a Saturday, at varying times of day. (See NYSCEF No. 75 at 9-10.) 63 West is correct that this showing may be enough to demonstrate due diligence, at least “in some circumstances.” (Board of Mgrs. of 50 W. 127th St. Condominium v. Kidd, 169 A.D.3d 432, 432, 94 N.Y.S.3d 27 [1st Dept. 2019], citing Ayala v. Bassett, 57 A.D.3d 387, 388, 870 N.Y.S.2d 261 [1st Dept. 2008]; accord Brafman & Assocs., P.C. v. Balkany, 190 A.D.3d 453, 453, 139 N.Y.S.3d 199 [1st Dept. 2021].) But in the unusual circumstances of this case, something more was required.
In particular, CPLR 308 (4) permits nail-and-mail service only to “the actual place of business, dwelling place or usual place of abode” of the person being served. The entire premise of 63 West's complaint, though, was that Bicher has violated his lease by consistently subletting the leased premises on a short-term basis—which would then raise the question whether Bicher was using the leased premises as his “dwelling place or usual place of abode” at the time of service, or was instead living elsewhere full-time while using the premises merely for short-term sublets to Airbnb renters and the like. (Cf. Stillman v. City of New York, 39 A.D.3d 301, 302-303, 834 N.Y.S.2d 115 [1st Dept. 2007] [holding that plaintiff failed to establish that nail-and-mail service was valid where record established that defendant had moved from the service address three weeks before plaintiff effected service].) 63 West's papers opposing the motion to vacate do not address what it knew at the time of service about where Bicher was living: Rather, 63 West merely asserts, without elaboration or support, that the leased premises were Bicher's “home address.” (See NYSCEF Nos. 64 at ¶ 16, 74 at ¶ 31, 75 at 9.)
The affidavit of service does not show that before resorting to nail-and-mail service, the process server attempted to dispel this lack of clarity and confirm that Bicher was, in fact, living at the leased premises. The affidavit does not, for example, indicate that the process server conducted searches to see whether the address of the leased premises matched addresses given by Bicher to the Department of Motor Vehicles, to the Board of Elections, or to other government agencies or private companies in consumer or business dealings. (See e.g. Bank of Am., N.A. v. Budhan, 171 A.D.3d 622, 622-623, 99 N.Y.S.3d 264 [1st Dept. 2019] [finding due diligence when record reflected process server checked address in proprietary address database and confirmed defendant's residence with a neighbor]; Spath v. Zack, 36 A.D.3d 410, 413, 829 N.Y.S.2d 19 [1st Dept. 2007] [finding lack of due diligence when process server served address where defendant no longer lived without first checking DMV records].) Nor does the affidavit state that the process server attempted to check with one of Bicher's neighbors in the building (or building employees) about whether Bicher lived at the leased premises. (See Budhan, 171 A.D.3d at 622, 99 N.Y.S.3d 264.)
For that matter, the affidavit of service does not reflect whether the process server attempted to ascertain Bicher's business address or to serve him there—the affidavit merely recites that Bicher's “employer and ․ place of employment is unknown.” (NYSCEF No. 16.) 63 West is correct to argue that a plaintiff is not necessarily required to attempt to serve the defendant at a business address before resorting to nail-and-mail service. (See NYSCEF No. 75 at 11, citing Farias v. Simon, 73 A.D.3d 569, 570, 899 N.Y.S.2d 843 [1st Dept. 2010].) But given the reason to doubt that defendant was living at the leased premises, the lack of evidence that the process server attempted first to verify other possible service addresses for Bicher further undermines plaintiff's due-diligence showing. (See Serraro v. Staropoli, 94 A.D.3d 1083, 1085, 943 N.Y.S.2d 201 [2d Dept. 2012] [finding no due diligence when process server “did not make any inquiries about the defendants’ ․ business addresses,” but instead “simply reviewed the residential address on [the] summons and complaint, and made four attempts at personal service at that address”]; One Arden Partners, L.P. v. Bicher, 2021 N.Y. Slip Op. 30232[U], at *2, 2021 WL 256632 [Sup. Ct., N.Y. County Jan. 26, 2021] [Jaffe, J.] [holding, in an unrelated action against Bicher for engaging in impermissible short-term subleases, that process server had not shown due diligence by attempting service only at the leased premises “without attempting to serve him at his other addresses or conducting a search for his place of employment”].4 )
63 West contends that its process server was not required to have investigated further, pointing to a lease provision providing that notices from the landlord or its agents to Bicher will be properly delivered if sent by specified means to the leased premises. (See NYSCEF No. 75 at 10, citing NYSCEF No. 65 at ¶ 25 [lease].) But that a term of a contract between 63 West and Bicher provided for purposes of the contract that notices will be deemed proper if sent to Bicher at the leased premises does not itself establish that the leased premises would be properly considered Bicher's “dwelling place or usual place of abode” for purposes of CPLR 308.5 (See Cere v. Subway Intl. B.V., 96 A.D.3d 438, 438, 945 N.Y.S.2d 552 [1st Dept. 2012] [distinguishing between service-of-notices provision of franchise agreement and service requirements of CPLR 311]; Horatio Arms, Inc. v. Celbert, 41 Misc. 3d 11, 13, 972 N.Y.S.2d 813 [App. Term, 1st Dept. 2013] [distinguishing between service-of-notices provision of lease and service requirements of RPAPL 735].)
In short, given the allegations of the complaint about Bicher's engaging in prohibited subletting, due diligence for purposes of CPLR 308 (4) required 63 West's process server to do more than simply make three service attempts at the leased premises before resorting to nail-and-mail service. Absent the necessary showing of due diligence, 63 West's service on Bicher was invalid, and this court lacks personal jurisdiction.
II. The Parties’ Requests for Sanctions
Each party has requested sanctions against the other, based on allegations that counsel each made false statements in motion filings about the procedural/litigation history of 63 West's past efforts in Housing Court to evict Bicher. Given the complexity of that litigation history, the court is not persuaded that any inaccurate descriptions of the Housing Court litigation by counsel here constitute sanctionably false statements. The parties’ respective requests for sanctions are denied.
Accordingly, for the foregoing reasons, it is hereby
ORDERED that the branch of Bicher's motion under CPLR 5015 (a) (4) seeking to vacate the default judgment entered against him on January 14, 2020, is granted; and it is further
ORDERED that this court's order entered August 28, 2019, is hereby vacated; and it is further
ORDERED that this court's order entered April 22, 2021, is hereby vacated; and it is further
ORDERED that the branch of Bicher's motion under CPLR 3211 (a) (8) seeking to dismiss the action for lack of personal jurisdiction is granted, and the action is dismissed, with costs and disbursements to be awarded by the Clerk upon submission of an appropriate bill of costs; and it is further
ORDERED that Bicher serve notice of entry on 63 West, on the office of the General Clerk, and on the office of the County Clerk, which is directed to enter judgment accordingly.
1. According to 63 West, Bicher remains in possession of the leased premises as a holdover tenant. The record does not reflect whether 63 West has ever brought a holdover proceeding in Housing Court seeking possession of the premises (as distinct from a nonpayment proceeding); and, if so, what the outcome was of that proceeding.
2. 63 West filed a proposed order for settlement in early March 2020. As a result of the pandemic, review and entry of that order was considerably delayed; but this court ultimately imposed a contempt sanction of $250 against Bicher.
3. 63 West's request for sanctions was styled as a cross-motion; but the cross-motion papers were untimely under CPLR 2215. This court informed the parties by email that it would treat the sanctions request as if it had simply been made in ordinary opposition papers. The court also afforded Bicher an opportunity to submit a post-return-date reply to that request, which he did.
4. The One Arden decision does reflect that a process server was able to hand-deliver motion papers to Bicher at his 63 West address in August 2020. (See 2021 N.Y. Slip Op. 30232[U], at *2, citing Index No. 152705/2020, NYSCEF No. 29 [affidavit of service].) But that service does not, without more, establish that Bicher was living in the 63 West leased premises in July 2019—much less that 63 West knew in July 2019 that he was living in the leased premises rather than elsewhere.
5. Nor does the notice provision of the lease, standing alone, shed meaningful light on 63 West's knowledge of whether leased premises were as a factual matter Bicher's dwelling place as of July 2019, given that the basis of 63 West's complaint was that Bicher had been blatantly ignoring the requirements of his lease.
Gerald Lebovits, J.
Response sent, thank you
Docket No: Index No. 654257/2019
Decided: December 20, 2021
Court: Supreme Court, New York County, New York.
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