Matter of Informart New York LLC v Hugh O'Kane
Elec. Co. LLC
2003 NY Slip Op 30231(U)
January 6, 2003
Supreme Court, New York County
Docket Number: 117964/2002
Judge: Emily Jane Goodman
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[* 1]
MOTIONICASE I RESPECTFULLY REFERRED TO
S
JUSTICE
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[* 2]
INFOMART NEW YORK LLC,
Petitioner.
- against
-
Index No.: 117964/2002
HUGH O~KANE
ELECTRIC CO. LLC,
Respondent.
..........................................................................
EMILY GOODMAN, J.
X
This petition arises out of a larger dispute among various contractors,
subcontractors, and other laborers and materialmen seeking to recover payment from
petitioner infomart new york, llc (“Infomart”), for unpaid work done at a property located
at 636 Eleventh Avenue, New York, New York 10036 (the “Premises”), at the request of
Infomart’s former tenant, Globalcenter Inc.’ In this proceeding, and in other related
proceedings, Infomart is attempting to vacate and discharge the notices of lien filed
against the Premises, on the grounds of alleged non-compliance with the Lien Law. Here,
pursuant to Lien Law
5 11, Infomart petitions for an order vacating and canceling a
mechanic’s lien filed by respondent Hugh O’Kane Electric Co., LLC (“HOK’), in the
amount of $28,075.1 1, on the ground of defective service.
’ Globalcenter Inc. is currently in bankruptcy.
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Discussion
Lien Law tj 11 provides that, “within five days before or thirty days after filing the
notice of lien, the lienor shall serve a copy of such notice upon the owner,” and if the
owner is a corporation,
“service shall be made (i) by delivering such copy to and leaving the same
with the president, vice-president, secretary or clerk to the corporation, the
cashier, treasurer or a director or managing agent thereof, personally, within
the state, or (ii) if such officer cannot be found within the state by affixing a
copy thereof conspicuously on such property between the hours of nine
o’clock in the forenoon and four o’clock in the afternoon, or (iii) by
registered or certified mail addressed to its last known place of business’’
(Lien Law tj 11). “[Tlhe current provisions of Lien Law
5
11 do not require an attempt at
personal service of the mechanic’s lien, before resorting to service by registered or
certified mail addressed to the corporation’s last known address” (L&J Plumbing &
Heatins Co. v Gateway Demolition C o p , 176 Misc 2d 277,278 [Sup Ct, Queens County
19981).
Here, Infomart claims that it was not served with, nor received, a copy of the lien
notice. HOK maintains that service was made by certified mail to Infomart’s last known
place of business. According to the affidavit of service, a copy of the lien notice was sent
to Infomart on October 26, 2001, via certified mail, at “c/o 841 SEVENTH AVE. C O W .
at 636 1lth Avenue, #700, New York, NY 10036” (Verified Petition, Ex B). However,
Infomart claims that it does not maintain an office in # 700 at the premises, and that it is
not affiliated with 841 Seventh Ave. Corp.
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HOK argues that petitioner’s only business address known to it was the address
where the lien notice was served. HOK submits a copy of a LEXIS search of property
records reflecting Infomart’s address as “c/o 841 SEVENTH AVE COW., 636 11TH
AVE # 700, NEW YORK, NY 10036-2010” (Verified Answer, Ex A). It also submits a
copy of a City of New York real property tax bill, dated September 11, 2002, listing
Infomart’s address as “636 11TH AVE RM 700, NEW YORK, NY 10036-2010” (d,
Ex
In reply, Infomart argues that the LEXIS search is unreliable. It further contends
that had HOK consulted the telephone book, or mortgage or UCC filings, it would have
discovered addresses of “636 11 Av @ W 47,” “636 Eleventh Ave” and “636 Eleventh
Avenue, New York, NY 10036” (see Abelman Aff., Exs B-E). Moreover, because its
designated agent for service of process is CT Corporation System, which is located
elsewhere (id.7 13, Ex G), Infomart argues that service is defective, citing Tadir Air, Inc.
v FGH Realtv. Inc. (297 AD2d 230 [ lstDept 20021). Infomart assumes that HOK
mistakenly mailed a copy of the lien notice to its mortgagee, 636 Eleventh Ave. Realty
Co., whose former address was “c/o 841 Seventh Ave. Corp., 636 Eleventh Ave. Room
700, New York, N Y 10036.” That corporation, allegedly an occupant of Room 700 for
many years prior to April 2000, submits an affidavit stating that it had never shared an
office with Infomart (Stern Reply Aff. 77 4-6).
Although LEXIS expressly disclaims the “accuracy, completeness, adequacy, and
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currency” of its content (see Abelman Reply Aff., Ex A), Infomart does not dispute the
validity of its address as reflected on the New York City tax bill (indicating the address of
636 1lth AVE RM 700, NEW YORK, NY 10036-2010). The Court finds that HOK
properly relied on this public document for Infomart’s last known address (cf.Follum v
Commr. of Internal Revenue, 128 F3d 118, 119 [2d Cir 19971 [“the address shown on the
taxpayer’s most recently filed return is his last known address unless the taxpayer has sent
a notice of change of address”]). Infomart’s argument that it never shared an office with
636 Eleventh Ave. Realty Co. is irrelevant because the law draws a distinction between
one’s “last known” address and one’s “actual” address
(see Feinstein v Bermer, 48 NY2d
234,241 [ 19791 [service was defective because it was affixed to defendant’s last known
residence rather than his actual dwelling place or usual place of abode, as required under
CPLR 308 (4)]). Contrary to Infomart’s arguments, mail sent to a “last known” address
does not require proof that the recipient is actually there (see Parks v Steinbrenner, 115
AD2d 395, 396-397 [ lSt
Dept 19851 [partner’s address listed in a business certificate on
file with County Clerk is the last known residence, even though partner claimed he
resided elsewhere]; Saralloyd CC v Mitchell DD, 197 AD2d 304 [3d Dept 19941 [under
former service provisions of Family Court Act, which required service to last known
address, it was irrelevant whether the person served resided at the address]; Porta v Otis
Glazebrook Assoc.. Inc., 81 AD2d 710 [3d Dept 19811 [notice of cancellation, sent to last
known place of business, as required under Workers’ Compensation Law, was validly
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mailed, even though insurance agency requesting cancellation of the policy was aware
that the employer’s president was living elsewhere]).
Accordingly, the sole issue is whether the inclusion of “c/o 841 Seventh Ave.
Corp.” in the mailing address rendered service defective. Not every mistake made to a
last known mailing address renders service defective. In Brownell v Feingold (82 AD2d
844 [2d Dept 1981]), plaintiff mailed a copy of the summons and complaint to
defendant’s last known residence at 29 Frankie Lane, Bethpage, NY 11714, but
defendant’s correct address was 29 Frankie Lane, Old Bethpage, NY 11804. The court
sustained service of process, stating:
“we cannot agree with the defendant’s suggestion that any mistake in the
address to which the summons is mailed -- no matter how minor -- will
render the service of process void. Where, despite an error in the address, it
is virtually certain that the summons will arrive at the defendant’s last
known residence, the ‘mailing’ requirement of ‘delivery and mail’ service
should be considered satisfied”
(- at 844; accord Taft v Lesko, 182 AD2d 1008 [3d Dept 19921).
id.
Federal courts have adopted similar reasoning in cases involving mail erroneously
addressed in care of another (see Hoffenberg v Commr. of Internal Revenue, 905 F2d 665
[2d Cir 19901; Rabb v Kaye, 1994 WL 330161; 1994 US Dist LEXIS 9162 [SD NY, July
7, 19941). In Hoffenberg, the court rejected the petitioner’s contention that the
Commissioner did not use the proper address in a tax deficiency notice because the
Commissioner addressed the notice in care of another. The court noted that, according to
postal regulations, “the addition of a ‘care o f line does not constitute a defect in the
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address, but merely adds a person at that address who may claim the mail” (Hoffenberg,
905 F2d at 666).’ In Rabb, plaintiffs process server mailed a copy of the complaint to
defendant, in care of a company not affiliated with defendant, but the address was
otherwise correct. The court held that service was proper, stating, “[tlhe fact that the
process server identified Mr. Kaye’s address as c/o L.B. Kaye International is not
important” (Rabb, 1994 WL 330161, * 1; 1994 US Dist LEXIS,
* 2).
Accordingly, in this case, the addition of “c/o 841 Seventh Ave Corp.” is not a
fatal defect where the lien notice was mailed to the street address, room number, and ZIP
code as reflected on Infomart’s property tax bill. Tadir Air. Inc., supra, does not dictate a
contrary result. There, in an action seeking foreclosure of a mechanic’s lien, the issue
was whether service of a summons and complaint was validly made upon a corporation
through an agent pursuant to CPLR 53 11 (a) (1). Because the affidavit of service of the
summons and complaint was not included in the record, the court looked to the affidavit
of service of the notice of lien, which reflected service on “FGH, c/o Cushman &
Wakefield, 90 West Street, Room 612, New York, NY.” The court found that service
was inadequate because it was made at Cushman & Wakefield’s office, and the plaintiff
did not dispute that Cushman & Wakefield was not an agent authorized to receive
process. Here, HOK is not claiming that 841 Seventh Ave. Corp. is an agent authorized
’See 39 CFR 2 1 1.2 (a) (2) (“The regulations of the Postal Service consist of: *
[tlhe Domestic Mail Manual, the Postal Operations Manual”).
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**
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by appointment or law to receive process under CPLR 93 11 (a) (1). More importantly,
the court expressly declined to decide whether the plaintiff had failed to comply with the
service provisions of the Lien Law (Tadir Air. Inc., 297 AD2d at 23 1).
Accordingly, it is
ADJUDGED that the petition is denied and the proceeding is dismissed.
This constitutes the Decision and Judgment of the Court.
Dated: January 6,2003
ENTER:
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