City of New York v Broadway & Canal Realty Corp.

[*1] City of New York v Broadway & Canal Realty Corp. 2009 NY Slip Op 51945(U) [24 Misc 3d 1250(A)] Decided on September 16, 2009 Supreme Court, New York County Figueroa, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 16, 2009
Supreme Court, New York County

The City of New York, Plaintiff,

against

Broadway and Canal Realty Corp., THE LAND AND BUILDING KNOWN AS 419-423 BROADWAY, TAX BLOCK No. 231, TAX LOT # 12, COUNTY OF NEW YORK, CITY AND STATE OF NEW YORK; "JOHN DOE," "JANE DOE," fictitiously named parties, true names unknown, the parties being the owners, lessees, operators or occupants of the ground floor storefront located at 299 Canal Street, New York, New York; and any person claiming any right, title or interest in the real property which is the subject of this action, Defendants.



401527/09



Michael A. Cardozo, Corporation Counsel of the City of NY, by Laurence Goldstein, Esq.,

for plaintiff

Jaffe, Ross & Light LLP, by Burton R. Ross, Esq., for defendant Broadway and Canal Corp.

Nicholas Figueroa, J.

The City of New York commenced this nuisance-abatement action by order to show cause dated June 24, 2009. The defendant landlord seeks to dismiss on jurisdictional grounds (CPLR 3211[a][8], [9]).

The show cause order was supported by an investigator's affidavit attesting to multiple sales of counterfeit-trademarked merchandise at the subject premises. In accordance with the expedited procedure for nuisance abatement actions (under title 7 of the Administrative Code of the City of New York), the order scheduled the City's preliminary injunction hearing within three business days (on June 29, 2009). In the interim, the order provided for temporary closure of the premises, along with the usual type of temporary restraints allowable under section 7-710 of the Code. The order also contained the following provisions for service: [*2]

[S]ervice of a copy of this Order to Show Cause, together with

the papers upon which it is based, along with service of the summons and complaint [shall] be made upon the Defendants personally; or by leaving

a copy thereof with a person of suitable age and discretion at the subject

premises; or if service by either of these methods cannot be effectuated, by

posting a copy thereof at the subject premises, on or before the 24th day of

June, 2009, and ... [shall] be deemed good and sufficient service on the

Defendants, provided[,] however, that [,] if service is not made personally,

a copy of the papers will be mailed to such Defendant at his or her last

known address by overnight mail on or before the 24th day of June, 2009.

On the return date, the corporate landlord was the only defendant to appear. Its counsel reported that the defendant tenant had vacated the premises. After protracted settlement discussions proved futile, the landlord filed the instant motion.

The landlord first contends that the court has no personal jurisdiction over it. It bases that defense upon the U.S. Postal Service's mailing label for the parcel containing the papers served pursuant to the show cause order. Such label indicates that the parcel had not been accepted by the Postal Service until June 26th. The landlord maintains that the mailing was therefore two days past the deadline established by the order. It is undisputed that the mailing was the sole mode of service attempted upon the landlord.

The City responds by pointing to its affidavit of service, which shows that the parcel was, as the City puts it, "placed in a United States Postal Service Express Mail Next Day Service postpaid wrapper properly addressed to the defendant[']s last known address[] and deposited in an official depository under the exclusive care an[d] custody of the ... Postal Service within New York State" on June 24th. In other words, the City proposes that its deposit of the parcel (as wrapped for next-day-service) into a Postal Service mailbox is the equivalent of the "overnight mail[ing]" required under the show cause order.

The City's position is implicitly based upon the established rule governing service by regular mail. Under that rule, service by regular mail is effected when there is a "mailing" as defined under section 2301(f) of the CPLR (see Cipriani v Green, 96 NY2d 821; National Organization for Women v Metropolitan Life Ins. Co., 70 NY2d 939). The statute defines the term "mailing" as "the deposit of a paper enclosed in a first class postpaid wrapper, [duly addressed] ..., in a post office or official depository under the exclusive care and custody of the United States Postal Service within the [S]tate...." (CPLR 2301[f]).

By proceeding as if service in this case might be effected almost as readily as service by regular mailing, however, the City ignored a critical term of the show cause order. As indicated above, the order's service provisions expressly required not simply a "mailing," but rather, service by "overnight mail." Indeed, given the impending evidentiary hearing, the need for speedy service was at the heart of the order. Accordingly, the order's service provisions clearly obliged the City to do more than must be done when only service by "mailing" is required and more than it did do when it wrapped the papers for "next-day" service, but consigned the package to a process that was not designed to achieve the purported objective. After all, as the terms of section 2301 make clear, service by "mailing" (of a properly addressed, post-paid item) entails [*3]only two considerations. First, the item must be delivered into the custody of the U.S. Postal Service, with deposit into an official U.S. mailbox satisfying such requirement. Second, presumably to avoid undue delay, the mailbox must be within the State. By contrast, the next-day delivery contemplated by the order's provision for "overnight mail" was achievable only by meeting certain Post Office preconditions. Under those preconditions, pre-paid, express mail affords "next day" delivery only upon acceptance by the Service's Express-Mail personnel by a certain time of the day (39 C.F.R. 111.1). In other words, an item designated for next-day delivery, but merely deposited as in this case into a post office box (indeed, apparently, not even in an Express Mail mailbox), cannot be deemed to have been effectively mailed for purposes of next-day delivery. Accordingly, the City's affidavit of service does not show that the City effected the June 24th "overnight mail" required by the order.

The landlord's personal-jurisdiction challenge is therefore meritorious, and if dismissal of the complaint as to itself were the only relief that the landlord sought, a grant of such relief would conclude the present motion. But the landlord asks instead for dismissal of the complaint in its entirety, taking issue with the City's claim to have obtained in rem jurisdiction in this case. In opposition, the City asserts that, even assuming a lack of jurisdiction over the landlord's person, "the court's jurisdiction over Defendant the Land and Building ... can not be questioned."

In support of such proposition, the City notes that on June 24th it had posted on a door of the subject premises a copy of the summons, among other papers. The City cites the following provision of section § 7-706 of the Administrative Code:

(c) .... In rem jurisdiction shall be complete[d] over the building, erection or

place wherein the public nuisance is being conducted, maintained or

permitted by affixing the summons to the door of the building, erection or

place and by mailing the summons by certified or registered mail, return

receipt requested, to one of the owners of some part of or interest in the

property.

It should be noted that the service provisions of the show cause order did not purport to override the requirements of subsection (c). Such provisions were intended only to prescribe the notice needed to obtain in personam jurisdiction over named defendants. Personal jurisdiction is not, however, a concept that can be made applicable to buildings, i.e., entities that are not "persons" within the meaning of any relevant law. In other words, the order's provision for "service" upon the premises was, at best, surplusage. On the other hand, it behooved the City to meet the in rem requirements of section 7-706( c).

It is therefore a matter of critical import that the City does not claim to have mailed the summons to the landlord by either certified or registered mail. In other words, the City has not satisfied the plain terms of the statute on which in rem jurisdiction would be based. Nor is there any warrant to construe those plain terms to mean anything other than what they say, since the statute clearly contemplates that an owner of the subject premises receive actual notice of the action and that certified or registered mailing, return receipt requested, is the appropriate vehicle for establishing such receipt. By contrast, for example, express mail next-day deliveries by the Post Office do not necessarily fulfil the requirement that there be receipts signed by the addressees themselves (see United States Postal Service Domestic Mail Manual § 503[1.1.3]).

In view of the foregoing, it is concluded that the City has failed to satisfy not only the [*4]service requirements of the show cause order, but also, the requirements for in rem jurisdiction under section 7-706 of the Administrative Code. Such jurisdiction is essential to maintaining an action to abate a public nuisance (see City of New York v 924 Columbus Associates, L.P, 219 AD2d 19, 23; City of New York v Castro, 160 AD2d 651, 652). Accordingly, the court is constrained to vacate the temporary restraining orders closing the subject premises and to dismiss the complaint, without prejudice to renewal upon the City's taking the requisite procedural steps.However, it should be noted that the City has brought countless nuisance-abatement actions in this court (and presumably in others), many of which have been assigned over the years to this Part 46. Currently pending files indicate that the City's abortive attempt to satisfy service and in rem requirements in the instant case is not simply an anomaly. This Part's experience suggests that the adequacy of such attempt has never before been challenged. Accordingly, the City is reminded that long-standing non-compliance does not make statutory and judicial mandates disappear.

This constitutes the decision and order of the court.

Dated: September 16, 2009

ENTER:

J.S.C.