City of New York v DeNoble
Annotate this CaseDecided on July 12, 2005
Civil Court, Richmond County
City of New York, Petitioner,
against
John DeNoble and "John and Jane Doe", Respondents.
010175/05
Attorney for Petitioner: Donald Wong, Of Counsel
Special Assistant Corporation Counsel
Michael A. Cardozo, Corporation Counsel
Department of Citywide Administrative Services
Office of the General Counsel
1 Centre Street, 16th Floor South New York, NY 10007
(212) 669-4558
Attorney for Respondent: Howard M. File, Esq., P.C.
260 Christopher Lane, Suite 102
Staten Island, NY 10314
(718) 494-8800
Judith R. McMahon, J.
On June 29, 2005 a Traverse Hearing was conducted in the above captioned matter in order to determine if proper service was effectuated by The City of New York on John DeNoble.
This hearing involved two separate commercial landlord - tenant cases involving the same litigants. John DeNoble had rented property from the City of New York and, presently, is considered a holdover by the City of New York in the proceeding with the indexNo.010176/05. On a contiguous piece of property also owned by the Petitioner, Mr. DeNoble is alleged to be a squatter (Index #
010175/05). The land at issue, owned by the City of New York, comprises two partial parcels of undeveloped waterfront property on Staten Island, New York where Mr. DeNoble has placed numerous bird aviaries.
The sole issue presented at the hearing concerned the Respondent's affirmative defense of lack of jurisdiction due to improper service in each case. Petitioner called as its only witness, Albert Elrington. Mr. Elrington testified that he has been employed by the City of New York as an Associate Real Property Manager for more than 18 years. As part of his employment duties, he inspects community based property for the City of New York and serves notices of process.
Also, Mr. Elrington testified that on December 17, 2004, he entered the subject property and, ultimately, met Mr. DeNoble. He had known Mr. DeNoble from approximately four prior meetings he had with him at the property. At the meeting on December 17, 2004, Mr. Elrington clearly and articulately stated that he handed Mr. DeNoble the 30 day predicate notice to vacate on the holdover proceeding and the 10 day notice to vacate on the squatter's matter. [*2]
Significantly, Mr. Elrington identified John DeNoble in open court as the person he had served.
Moreover, Mr. Elrington testified that, in addition to personally serving the Respondent, he mailed out the predicate notices in each case to each piece of property at issue as well as Mr. DeNoble's last known home addresses by Certified Mail Return Receipt Requested. The proof of mailings were entered into evidence at the hearing (Exh 1 and Exh 2). Only one letter was returned as unclaimed which was sent to a prior home address of the Respondent.
Mr. Elrington stated that on February 7, 2005, he personally served John DeNoble with the requisite Petitions in each respective case at bar. Again, he identified the same person whom he had serviced the Notices on was the same person who had personally received the Petitions- the Respondent, John DeNoble.
Again, Mr. Elrington averred that he had gone back to his office and mailed out the Notices by Certified Mail Return Receipt Requested on February 8, 2005 to the numerous addresses delineated previously. To his knowledge, none of the letters were unclaimed.
Upon cross examination by Respondent's attorney, Mr. Elrington admitted a discrepancy in his affidavit of service as to the exact location of service within the parameters of the two parcels and an error in a date.
John DeNoble testified and denied ever receiving personally or by mail any predicate Notices on December 17, 2004 and Notice of Petitions on February 7, 2005.
It is well established that it is the Petitioner who bears the ultimate burden of proving by a preponderance of the evidence that jurisdiction over the Respondent was obtained. Powell v. Powell, 114 AD2d 443 [2nd Dept. 1985]. The sole issue to be decided in the instant matter is whether John DeNoble was personally served the requisite predicate notices on December 17, 2004 and with the Notices of Petition on February 7, 2005 by Mr. Elrington. It is evident from the testimony and the arguments received by the court from the respective parties that CPLR 308(1), relating to personal service of process, is the only relevant section to be considered. There was a complete absence of proof concerning compliance by the City of New York with any other subsection of CPLR 308 or Real Property Actions and Proceedings Law 735, which governs the manner of service of process in landlord and tenant actions for non-payment of rent.
Preliminarily, the court accepts service performed by Mr. Elrington, even though he is not a licensed process server. Article 8 of the General Business law , and in particular, General Business Law §89-bb states, within the definition of a process server, the exception of an employee of a local government to serving process without a license:
1. A "process server" is a person, other than an attorney or a
party to an action acting on his own behalf, who: (a) derives [*3]
income from the service of papers in an action; or (b) has effected
service of process in five or more actions or proceedings in the
twelve month period immediately preceding the service in question.
A person who serves interlocutory papers upon an attorney or who
serves papers on behalf of a federal, state or local governmental
agency in the course of his employment by such agency shall not be
deemed a process server within the meaning of this article by virtue
of such service. GBL §89-bb (emphasis added).
This definition, and its exception, is echoed by §§20-404 and 20-405 of the New York City Administrative Code and recognized by the courts of this State. Metropolitan Transportation Authority v. Terminal Drago Shine Stands, Inc., 119 Misc2d 10, 462 NYS2d 758 (NY Civ.Ct. 1983).
Albert Elrington clearly testified to personally serving the Respondent , whom he knew from prior meetings, on December 17, 2004 and February 7, 2005. He identified Mr. DeNoble, not only from prior meetings, but asked him for his driver's license in order to confirm identification. Although the Certified Mailing Return Receipt Requested letters are not tantamount to substituted service, they evince a corroboration to Mr. Elrington's testimony. Mr. DeNoble testified conclusorily to never receiving anything on any date. Although both home addresses were not current, he had never informed the City of New York as to his new address which occurred in November 2004, merely a month prior to the predicate notices being mailed to his previous home address.
Additionally, Respondent's arguments regarding the physical location of service upon the Respondent, though cogently argued, are not sustainable in that the place where Respondent was served is irrelevant. Real Property Actions and Proceedings Law § 735, which governs the manner of service of process in landlord tenant actions for non-payment of rent, states with regard to in-hand service that "[s]ervice of the notice of petition and petition shall be made by personally delivering them to the respondent..." When interpreting a statute, one must first look to the plain language of the statute. Leader v. Maroney, Ponzini and Spencer, 97 NY2d 95, 761 NE2d 1018, 736 NYS2d 291 (2001), citing, Rosner v. Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475, 754 NE2d 760, 729 NYS2d 658 (2001); Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 696 NE2d 978, 673 NYS2d 966 (1998). The subject statute does not require that such in-hand delivery of the Notice of Petition and Petition be effectuated at the subject property. The plain language of the statute simply states that the Notice of Petition must be delivered to the Respondent.
Albert Elrington's four affidavits of service comprising the predicate notices and petitions concerning the two parcels of property at issue identify John DeNoble as a "Male, Italian-American, 60-65 years of age, approximately 5'8", Brown hair, Brown eyes and White skin". Respondent argued that Mr. DeNoble has gray hair, not brown hair. Evidently, the other items of description contained on the affidavits of service are precise. Mr. DeNoble's hair color [*4]may be described as "salt and pepper". This is a minor discrepancy in the identification of the Respondent, at best. See, J. Kings Food Service Professionals, Inc. v. Ocean Garden Café, 7 Misc 3d 129 (A), 2005 WL 856820 (NY Sup. App. Term).
In conclusion, Albert Elrington identified John DeNoble in court as the person he personally served with all the requisite notices and petitions concerning the subject properties; Mr. Elrington testified to seeing Mr. DeNoble's driver's license at the time of service on December 17, 2004; the affidavits of service sufficiently describe the Respondent as being personally served; the numerous Certified Mailings Return Receipt Requested of the notices and petitions corroborate the testimony of the Petitioner's witness. The Respondent failed to offer any explanation as to his allegation of the failure of the City of New York to personally serve him, other than a blanket denial. See, Borges v. Entra America, Inc., 7 Misc 3d 1032 (A), 2005 WL 1355144 (NY City Civ. Ct).
Accordingly, the evidence adduced at the traverse hearing established that the Respondent John DeNoble was properly served by personal service on December 17, 2004 with the requisite predicate notices and on February 7, 2005 with the Petitions concerning both parcels of property in the case at bar. Moreover, the City of New York's motion to amend the affidavits of service concerning the Petition and Notice of Petition that read "December 8, 2005 " as the mailing date of such is granted to conform to the proof evinced at trial to February 8, 2005.
All parties to appear at the Part 52 calendar on July 20, 2005.
This is the Decision and Order of the Court.
Court Attorney to notify both sides.
Dated: July 12, 2005
Judith R. McMahon
Judge, Civil Court
APPEARANCES
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