31 LLC 881 v. The Brooklyn Church of Christ, Respondent (2026)

Recitation in accordance with CPLR 2219 (a) of the papers considered on the order to show cause filed on June 18, 2026, under motion sequence number one, by East 31 Holdings LLC (hereinafter petitioner) for an order granting the petitioner access to the property of the Brooklyn Church of Christ (hereinafter the respondent) to:

i. Conduct a non-invasive visual, photographic and/or video pre-conditions survey of the exterior and interior of the respondent's property prior to the commencement of the Construction (the "Pre-Con Survey");

ii. Install, maintain, monitor and remove seismograph vibration monitors, crack monitoring gauges, and/or elevation and lateral position control points established at the respondent's property pursuant to the monitoring plan to be provided to the respondent (collectively, the "Monitors" and the "Monitor Work"; the Pre-Con Survey and Monitor Work are referred to herein collectively as the "Pre-Construction Work");

iii. Install, maintain and remove temporary protections on and/or over the respondent's Property, which may include, without limitation, a construction fence, netting, overhead protection, scaffolding, rooftop protection and/or a controlled access zone, as required by applicable law and/or good construction practice, and pursuant to the Site Safety Plan to be provided to the respondent (collectively, the "Temporary Protections")

iv. Access the respondent's property as reasonably required for the completion of the exterior façade of the Project, which may include employing workmen and/or staging and/or storing materials and equipment on the Premises (the "Façade Completion");

v. Access the airspace above the respondent's property in order to install and maintain scaffolding, an outrigger and/or netting system, employ swing stages for the completion of the façade work, and maintain any other projections and/or intrusions into the airspace over the respondent's property as reasonably required in connection with the Project, and as permissible by Applicable Law (the "Airspace Access");

vi. Install, maintain and, upon completion, remove a sidewalk bridge/shed on the public sidewalk in front of the respondent's property as required by the Code and applicable law (the "Sidewalk Shed"); and

vii. Utilize the respondent's electrical power and water supply at the respondent's Property to the extent reasonably necessary for the performance, installation, and maintenance of the Access, with the petitioner to bear all costs of such usage (the "Utility Access")

all in connection with the Project and as required by, and in compliance with the New York City Building Code, the New York City Department of Buildings, and all applicable local laws, codes, rules, regulations and directives, and to protect the respondent's property, the occupants thereof, and the public at large, all for a period for twelve (12) months, commencing upon the installation of the temporary protections and for an order directing the respondent to execute required filings with the DOB, if any, for the access. The motion is unopposed.

Order to show cause

Petition

Exhibits A-G

Affirmation in support by counsel

Affirmation in support by Hershy Horowitz

Affirmation in support by Ariel Golshan, P.E.

Affirmation in support by Feras Ayoub, P.E.

Memorandum of law in support

BACKGROUND

On June 15, 2026, the petitioner commenced the instant special proceeding by filing an order to show cause and petition with accompanying exhibits (hereinafter "the commencement papers") with the King County Clerk's office (hereinafter "the KCCO").

The petitioner seeks an order pursuant to RPAPL 881 granting the petitioner access to, and authorizing the installation of temporary protections on, the adjoining property owned by The Brooklyn Church of Christ ("the respondent") in connection with the petitioner's demolition, excavation, and ground-up construction development project (collectively, the "Project") on the petitioner's property. Adjacent to petitioner's property is the respondent's property located at 1954 Nostrand Avenue, Brooklyn, New York (the "the respondent's property").

On June 18, 2026, the Court signed the instant order to show cause, set the return date for July 23, 2026, at 9:30 a.m. in Part 52 and directed personal service of the commencement papers on the respondent on or before July 9, 2026.

On July 7, 2026, the petitioner filed under NYSCEF Doc. Nos. 17 and 18, two affidavits of service of the commencement papers with the KCCO.

The affidavit of service filed under NYSCEF Doc. No. 17 by petitioner's process server, averred service of the commencement papers on July 1, 2026, upon JESSE MACK, the respondent, therein named by delivering and leaving a true copy or copies of the aforementioned documents with Dorthy Mack, MOTHER, a person of suitable age and discretion. It further averred that on July 6, 2026, the process server mailed the commencement papers to the said respondent at the same address that being the the usual place of abode, last known residence, of the respondent.

The affidavit of service filed under NYSCEF Doc. No. 18 by petitioner's process server, averred service of the commencement papers on June 30, 2026, upon Thomas Meusa, the respondent, therein named by delivering and leaving a true copy or copies of the aforementioned documents with Thomas Meusa.

LAW AND APPLICATION

The respondent in the instant special proceeding is the Brooklyn Church of Christ.

The affidavit of service filed under NYSCEF Doc. No. 18 by petitioner's process server, averred service of the commencement papers on June 30, 2026, upon Thomas Meusa, the respondent. The petitioner's papers do not explain what connection, if any, Thomas Meusa has to the respondent or why service upon this individual constitutes proper service upon the Brooklyn Church of Christ.

Similarly, the affidavit of service filed under NYSCEF Doc. No. 17 by petitioner's process server, averred service of the commencement papers on July 1, 2026, upon Jesse Mack, as the respondent. Once again, the petitioner's papers do not explain what connection Jesse Mack has to the respondent, or why service upon this individual constitutes proper service upon the Brooklyn Church of Christ.

"The petitioner bears the ultimate burden of establishing that the court has personal jurisdiction over the respondent" (Matter of Theodore T. [Charles T.], 78 AD3d 955, 956 [2d Dept 2010], citing Frankel v Schilling, 149 AD2d 657, 659 [2d Dept 1989]).

Regarding the affidavit of service filed under NYSCEF Doc. No. 17 by petitioner's process server, it also demonstrates an additional problem. Assuming, for the sake of argument that this individual was authorized to accept service of process upon the respondent, the service was not completed as directed by the Court. The process server averred service upon Jesse Mack by delivering the commencement papers with Dorthy Mack, MOTHER, followed by a mailing on July 6, 2026 and the filing of the affidavit of service on July 7, 2026.

The process server was attempting service upon Jesse Mack using CPLR 308 (2). Service under CPLR 308 (2) is not deemed complete until ten days after the filing of the process server's affidavit of service (see CPLR 308 [2]). Consequently, service was not completed until July 17, 2026.

"The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with" (Matter of Sharma v New, 87 AD3d 1070, 1070 [2d Dept 2011], quoting Matter of Theodore T. [Charles T.], 78 AD3d 955, 956-957 [2d Dept 2010], quoting Hennessey v DiCarlo, 21 AD3d 505, 505 [2d Dept 2005]). "Moreover, where the court orders service by a particular date, all components of service must be accomplished by that date" (Matter of Sharma v New, 87 AD3d 1070 [2d Dept 2011], quoting Matter of El Greco Socy. of Visual Arts, Inc. v Diamantidis, 47 AD3d 929, 929 [2d Dept 2008]). The petitioner did not comply with the method of service provided in the order to show cause leaving the Court without personal jurisdiction over the respondent.

For the forgoing reasons the petitioner did not meet its burden of establishing that the court has personal jurisdiction over the respondent (see Matter of Theodore T. [Charles T.], 78 AD3d 955, 956 [2d Dept 2010], citing Frankel v Schilling, 149 AD2d 657, 659 [2d Dept 1989]).

CONCLUSION

The petition by petitioner East 31 Holding LLC, for an order pursuant to RPAPL 881 granting petitioner access to, and authorizing the installation of temporary protections on, the adjoining property owned by respondent The Brooklyn Church of Christ is denied without prejudice for lack of personal jurisdiction over the respondent.

The foregoing constitutes the decision and order of this Court.

ENTER:

J.S.C.

Francois A. Rivera, J.