Top Value Homes v Continental Petroleum Corp.
Annotate this CaseDecided on March 26, 2004
District Court Of Nassau County, First District
Top Value Homes, Inc., Petitioner(s),
against
Continental Petroleum Corp., Respondent(s).
INDEX NO. SP 005912/03
Scott Fairgrieve, J.
This is a commercial holdover proceeding to recover possession of a gasoline station located at 1755 Dutch Broadway, Elmont, NY. The petitioner seeks the issuance of a warrant of eviction to remove the corporate tenant and a money judgment for use and occupancy accrued since December 1, 2003. The respondent moves to dismiss the proceeding upon the grounds that the Court lacks personal jurisdiction over the respondent in that the Notice of Termination and the Petition were improperly served.
The facts of service are not in dispute. Both the thirty (30) day Notice of Termination and the Petition were handed to a gas station attendant at the gasoline station, with follow-up mailings to the corporation. The respondent does not challenge the mailings but contends that service of both papers was invalid because the gas station attendant was not authorized to accept service on behalf of the corporation.
Service of papers in summary eviction proceedings is governed by RPAPL §735(1). This statute permits service of the papers by personal delivery or by substitute service or, if upon reasonable application personal delivery or substitute service cannot be made, by conspicuous place service.
RPL §735(1) provides as follows:
"Service of the notice of petition and petition shall be made by personally delivering them to the respondent; or by delivering to and leaving personally with a person of suitable age and discretion who resides or is employed at the property sought to be recovered, a copy of the notice of petition and petition, if upon reasonable application admittance can be obtained and such person found who will receive it, or if admittance cannot be obtained and such person found, by affixing a copy of the notice and petition upon a conspicuous part of the property sought to be recovered or placing a copy under the entrance door of such premises; and in addition, within one day after such delivering to such suitable person or such affixing or placement, by mailing to the respondent [in the manner further set forth in the statute]."
[*2]
The petitioner was therefore permitted to deliver the papers to any person of "suitable age and discretion" who was employed at the property (RPAPL §735[1]). The RPAPL substitute service provision reflects the legislative determination that due process notice requirements for service on a corporation in an eviction proceeding are satisfied by service on an ordinary employee, as opposed to a CPLR 311(1) corporate representative, who is of "suitable age and discretion" (see, City of New York v. Wall St. Racquet Club, 136 Misc 2d 405, 518 NYS2d 737 [Civ Ct, NY County 1987]). Notwithstanding this general legislative determination, when a particular service is challenged, a Court must evaluate the validity of that service under the constitutional standard of whether the service "is one reasonably calculated, under all the circumstances, to apprise the interested party of the pendency of the action" (see, Bossuk v. Steinberg, 58 NY2D 916, 460 NYS2d 509 [1983]; quoting Mullane v. Central Hanover Trust Co., 339 US 306, 70 SCt 652 [1950]; Fashion Page v. Zurich Ins. Co., 50 NY2D 265, 428 NYS2d 890 [1980]).
Thus, in determining the validity of substitute service on a respondent under RPAPL §735, the test is whether the delivery of the papers to the given employee, "objectively viewed, is calculated to adequately and fairly apprise the respondent of an impending lawsuit" (see, Ilfin Co. v. Benec Indus., 114 Misc 2d 411, 451 NYS2d 643 [Civ Ct NY County 1982]; 50 Ct. St. Assocs. v. Mendelson & Mendelson, 151 Misc 2d 87, 572 NYS2d 997 [Civ Ct, Kings County 1991]).
In the case at bar, the process server's delivery of the papers to the corporate respondent's gas station attendants were sufficient to satisfy the requirements of RPAPL §735. It is undisputed that the gas station attendants were employees of the respondent's and were employed at the premises sought to be recovered. Their jobs involved the performance of responsible functions for example, dealing directly with customers on various matters, including collection of fees. They were, in fact, the respondent's only employees who were observed to be on duty at the premises at the time of service. Accordingly, service of the thirty (30) day termination notice and the petition were properly made and thus personal jurisdiction over the respondent was obtained.
Next, the respondent contends that the landlord accepted rent after the notice to terminate and before the commencement of this proceeding. "If rent is accepted by a landlord prior to the expiration date of the notice of termination, the notice is still valid" (Amalgamated Housing Corp. v. Luxenberg, 8 Misc 2d 831, 168 NYS2d 585 [Municipal Court of the City of New York 1957]. However, it has long been the law that the acceptance of rent after the tenancy is purportedly terminated and before commencement of the proceeding, vitiates the notice of termination entitling the tenant to a dismissal of the proceeding (see, Associated Realties v. Brown, 146 Misc 2d 1069, 554 NYS2d 975 [NY City Civ Ct 1990]; see also, Roxborough Apartment Corp. v. Becker, 673 NYS2d 814 [NY City Civ Ct 1998]). Furthermore, retention of the rent payment by a landlord without immediately returning the check(s) or explaining the inadvertence in not promptly returning the payment, constitutes grounds to vitiate the predicate notice (see, 205 East 78th Street Associates v. Cassidy, 192 AD2d 479, 598 NYS2d 699, reversing on dissent of McCooe J., NYLJ, September 27, 1991 at 21, col 4, 5 [App. Term 1st Dept]; Roxborough Apartment Corp. v. Becker, 673 NYS2d 814 (NY City Civ Ct 1998); Mannino v. Figuero, NYLJ, November 22, 1995 at 31, col [*3]12 [Civ Ct, Kings County]; St. Lukes/Roosevelt Hospital Center v. Taft Pharmacy Inc., NYLJ, May 10, 1995 at 31, col 5 [Civ Ct, NY County]).
In the case at bar, the termination notice was served on October 20, 2003 with a termination date of November 30, 2003. The summary proceeding was commenced on December 8, 2003.
In the instant case, the respondent contends that two (2) rent checks for the months of December 2003 and January 2004 were given to the petitioner after service of the termination notice and "again around the commencement of this proceeding."
If the rent check(s) were paid by respondent to petitioner after the summary proceeding had been commenced, then this would not vitiate the summary proceeding (see, N.Y. Real Prop. Acts Law, Sec. 741(5), 749 (3); South Street Ltd. Partnership v. Jade Sea Restaurants, 187 AD2D 397, 500 NYS2d 290 [1st Dept 1992]; Beacway Operating Corp. v. Concert Arts Soc., Inc., 123 Misc 2d 452, 474 NYS2d 227 [City Civ Ct 1984]). If any of the rent check(s) were paid to petitioner after the purported termination of the lease and before the summary proceedings were commenced and retained without being cashed, this would vitiate the within proceedings. For some reason, respondent failed to attach the December 2003 and January 2004 rent checks. The affidavit of petitioner's Vice President, Lucille Juengst, dated January 26, 2004, states:
"The Respondent's rent checks for December 2003 and January 2004 have not been negotiated."
This Court is unable to determine if the payments were made before or after this proceeding was commenced. Thus, this issue must be resolved at trial.
Moreover, the Court finds that an issue of fact exist(s), inter alia, with regard to the type of tenancy that was created between the parties and the effect of any sublease agreement entered into between Halilu Inc. and the respondent as subtenant.
All parties are directed to appear for trial before the undersigned in room 155 of the First District Court, 99 Main Street, Hempstead, New York on the 8th day of April, 2004 at 2:00 p.m. The Court will try this holdover proceeding and any relevant defenses raised by the respondent. There shall be no adjournments without the permission of the Court.
So ordered: [*4]
DISTRICT COURT JUDGE
Dated: March 26, 2004
CC:Bruce P. Vetri, Esq.
Anthony J. Cincotta, Esq.
Decision Date: March 26, 2004
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