FPKT, LLC v Paradise Pillows, Inc.

[*1] FPKT, LLC v Paradise Pillows, Inc. 2005 NY Slip Op 51790(U) [9 Misc 3d 1125(A)] Decided on November 4, 2005 Civil Court Of The City Of New York, Kings County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 4, 2005
Civil Court of the City of New York, Kings County

FPTK, LLC, Petitioner,

against

PARADISE PILLOWS, INC., Respondent.



FPTK, LLC, Petitioner, -against-

against

PARADISE PILLOWS, INC., Respondent.



76864 / 05



Petitioner was represented by Steven E. Ginsberg, Esq. of Wenig, Ginsberg, Saltiel & Greene LLP, and Respondent was represented by Bruce A. Feldman, Esq.

Jack M. Battaglia, J.

Was service properly made on a commercial tenant pursuant to RPAPL §735, when attempts at personal delivery at the premises were made late on a Friday afternoon, a Saturday, and the second day of Passover, with affixation on the final attempt, while the business was closed in observance of the Jewish Sabbath and a holy day? If the landlord had reason to know that the business was likely to be closed at those times, service was not proper.

These two commercial holdover proceedings were commenced with Petitions and Notices of Petition that are identical except for the description of the premises to be recovered. In Action No. 1, the premises are described as: "All rooms Ground Floor at 94 Thomas Street, at the corner of Porter Avenue." In Action No. 2, the premises are described as: "All rooms Part of Ground Floor facing Flushing Avenue and Porter Avenue located at 1087 Flushing Avenue." Each Petition alleges that FPTK, LLC, the owner and landlord of the respective premises, terminated the tenancy of respondent Paradise Pillows, Inc., effective May 31, 2005, with separate Notices of Termination of Tenancy dated April 22, 2005. The Notices are signed "Landlord, FPTK, LLC / By: A Simkowitz for Guardian Realty."

Each of the Petitions is accompanied by an Affidavit of Service sworn to on April 26, 2005 by licensed process server Steven D. Stewart. The Affidavit in Action No. 1 asserts that attempts were made to personally deliver the Notice of Termination at the premises on April 22, 2005 at 3:50 p.m., on April 23, 2005 at 11:30 a.m., and on April 25, 2005 at 9:10 a.m.; that, finding no person on the premises, the Notice was affixed to the entrance door; and that, on the following day, the Notice was mailed to Respondent at the premises by certified mail and regular first class mail. The Affidavit in Action No. 2 is identical except for one-minute differences in the times of the attempts and affixation. April 22 and April 23 were a Friday and Saturday, and, the parties agree, April 25 was the second day of Passover, a day in the Jewish calendar with significant religious and cultural meaning.

In each proceeding, Respondent filed a Verified Answer asserting various Affirmative Defenses, including challenges to service of the Petition and the predicate Notice of Termination, followed by a Motion to Dismiss on those grounds. The motions are supported by Affidavits of Freddy Halfon, an officer of Respondent, in which, among other things, he states as to the Notices of Termination: "[A]ttempts [at personal delivery] were made on at least one day when, due to jewish (sic) holiday, the Respondent was closed. The practice of being closed on these dates was well known to the landlord that rented the premises to Respondent and to any person that ever had any dealings with Respondent." (See Affidavits of Freddy Halfon dated July 28, 2005, ¶6.)

In separate Decision / Orders dated September 14, 2004, the Court granted the motions, only to the extent of scheduling a hearing on September 21 on whether the respective Notices of Termination were properly served. The motions were otherwise denied, the Court having concluded that Respondent did not make a sufficient showing to warrant a hearing on its defense of lack of personal jurisdiction. (See Chemical Bank v Darnley, 300 AD2d 613, 614-14 [2d Dept 2002]; Remington Investments, Inc. v Seiden, 240 AD2d 647, 647 [2d Dept 1997].)

The hearing was held as scheduled. Because the Respondent did not challenge the factual assertions in the Affidavits of Service, it was not necessary for the process server to testify to establish the dates and times of affixation and the attempts at personal delivery. Neither party called the process server to testify for any other purpose. Without prejudice to either party's [*2]position as to evidentiary burdens, Petitioner presented the testimony of Chaim Simkowitz, an officer of Guardian Realty, and Respondent presented the testimony of Freddy Halfon, the officer of Respondent whose Affidavits were submitted on the motions. At the conclusion of the hearing, the parties were invited to make post-hearing submissions, and each party did so.

Petitioner contends that Respondent "bore the burden of proving that he is an observant Jew by a preponderance of the evidence, [but] failed to offer facts sufficient to support shielding him on religious grounds from otherwise valid process." (Petitioner's Post-Hearing Memorandum at 10.) (Although Respondent is a corporation, Petitioner's and Respondent's submissions refer to Mr. Halfon as "Respondent", and use personal pronouns accordingly.) As will appear, the Court agrees only to the extent that, in these proceedings, Respondent bears the burden of coming forward with evidence that Petitioner had reason to know that the business was likely to be closed when affixation and the attempts at personal delivery were made. But Petitioner bears the burden of persuasion that the Notices of Termination were properly served.

The parties agree, at least for purpose of these motions, that Respondent occupies the subject premises as a month-to-month tenant, and that Petitioner was required to serve its Notices of Termination in a manner permitted by RPAPL §735. (See RPL § 232-a.) Service of the Notices as required was a condition precedent to Petitioner's right to possession of the premises and commencement of these summary proceedings. (See Chinatown Apartments, Inc. v Chu Cho Lam, 51 NY2d 786, 788 [1980]; 170 West 85th Street Tenants Association v Cruz, 173 AD2d 338, 339 [1st Dept 1991]; Henry and Baltic Associates v K & Q Food Corp., 7 Misc 3d 83, 85 [App Term, 2d Dept 2005].)

Generally, the burden of proving the occurrence or satisfaction of a condition precedent is usually on the party who is seeking to enforce the right or obligation so conditioned. (See Curtis Properties Corp. v Greif Companies, 212 AD2d 259, 265 [1st Dept 1995].) Moreover, the burden of proof is often said to follow the burden of pleading (see Prince, Richardson on Evidence, §3-209 at 120 [Eleventh Ed. Farrell]), and Petitioner was required to plead facts constituting the proper service of the Notices of Termination or, as it did here, attach copies of the Notices and Affidavits of Service to the Petitions. (See Lorenzo v Rivera, 132 Misc2d 591, 592 [Civ Ct, Kings County 1986]; Margolies v Lawrence, 67 Misc2d 468, 470 [Civ Ct, NY County 1971].)

As will appear, Petitioner has made a prima facie showing of proper service of the Notices of Termination with Affidavits of Service that assert facts as to service that indicate compliance with RPAPL §735. The statute permits service by affixation and mailing, if, after "reasonable application", admittance to the subject premises cannot be obtained and a suitable person found to receive the document(s). (See RPAPL §735[1].) It becomes Respondent's burden then to come forward with evidence that service was not proper. If Respondent does so, the Court must determine whether Petitioner has established by a preponderance of the evidence that service was proper. [*3]

Before addressing compliance with RPAPL §735(1), the Court notes that both parties make reference to General Business Law §13, which provides that "[w]hoever maliciously procures any process in a civil action to be served on Saturday, upon any person who keeps Saturday as holy time, and does not labor on that day...is guilty of a misdemeanor." Service of "any process" in violation of the statute would be void. (See Martin v Goldstein, 20 AD 203, 205 [4th Dept 1897]; Hirsch v Zvi, 184 Misc2d 946, 947 [Civ Ct, Kings County 2000]; see also Matter of Kushner, 200 AD2d 1, 2 [1st Dept 1994]; Chase Manhattan Bank, N. A. v Powell, 111 Misc2d 1011, 1012-13 [Sup Ct, Nassau County 1981].) Although the statute speaks of "process", service of a statutory notice of termination in violation of its terms would likewise appear to be void. (See Di Perna v Black, 187 Misc 437, 439 [App Term, 1st Dept 1946] [addressing the predecessor to GBL §11 concerning service on Sunday].)

But, because "it was the design of the Legislature to punish only such persons as intentionally, that it, maliciously, annoy and vex any class of citizens who religiously observe any part of the week as 'holy time' " (Martin v Goldstein, 20 AD at 208), the statute's application to nail-and-mail service upon a corporation is far from clear. Service in that manner requires that no person be present to be "annoy[ed] or vex[ed]", and any presumption that might arise in the case of personal delivery from knowledge that the person served "keeps Saturday as holy time, and does not labor on that day" (see Hirsch v Zvi, 184 Misc2d at 748) would evaporate if affixation and attempted delivery are knowingly made at a place of business where no one is likely to be present. In short, General Business Law §13 is concerned with the consequences of making personal delivery, not the failure to make personal delivery.

Respondent contends that "Petitioner, through its agent, Guardian Realty, had prior knowledge that the Respondent was an observant Jew and observed the Jewish Sabbath and Jewish holidays...including the first two-days of Passover." (Respondent's Post-Hearing Submission at 2.) Petitioner agrees that "if the owner (and the process server to whom the owner's knowledge is imputed) knows that the intended respondent is an observant Jew..., then Saturday service would not be in 'good faith' and would not count towards reasonable application", but that "the respondent's testimony failed to substantiate that he is an observant Jew." (Petitioner's Post-Hearing Memorandum at 4-5, 12.)

With qualifications as will appear, the parties' respective contentions accurately reflect the governing law. It is not necessary for the Court to determine whether or not Respondent's shareholders or the managers of its business are "observant Jews". Indeed, the Court would seem constitutionally prohibited from making that determination. (See Lightman v Flaum,

97 NY2d 128, 137 [2001]; Mandel v Silber, 304 AD2d 538, 538 [2d Dept 2003].) Rather, the issue is whether the landlord, in this case through its agent, had notice of facts that would lead a reasonable person to infer that no one would likely be present to accept delivery on the business premises at particular times or on particular days. Petitioner argues extensively from certain mitzvot or commandments that "have the mark of the observant Jew" (Petitioner's Post-Hearing Memorandum at 7-10) and an arguable lack of evidence as to compliance by Respondent's witness (see id., at 7-10.) Even assuming, however, that the record would support the conclusion [*4]that the keeping of all of these commandments were understood by Petitioner's witness to be necessary to an "observant Jew", such would be relevant only to the extent that they would or would not give Petitioner reason to know that no one would likely be present to accept delivery on the premises at the times and on the days affixation and attempted delivery were in fact made.

Again, service by affixation and mailing is permitted only after "reasonable application" is made for admittance and personal delivery. (See RPAPL §735[1].) Although "reasonable application" does not require the same degree of effort as "due diligence" (see CPLR 308[4]; Eight Associates v Hynes, 102 AD2d 746, 747-48 [1st Dept 1984], aff'd 65 NY2d 739 [1985]; Brooklyn Heights Realty Co. v Gliwa, 92 AD2d 602, 602 [2d Dept 1983]), there must be at least a "reasonable expectation of success" in finding a person on the premises to whom delivery may be made (see Naman v Sylveen Realty Co., 222 AD2d 564, 565 [2d Dept 1995]; Empress Manor Apartments v Levenson, 115 AD2d 586, 586-87 [2d Dept 1985]; Brooklyn Heights Realty Co. v Gliwa, 92 AD2d at 602.)

"Reasonable expectation of success" may come from a business's "posted office hours" (see Naman v Sylveen Realty Co., 222 AD2d at 565), or from "common experience" (see Palumbo v Clark's Estate, 94 Misc2d 1, 5 [Civ Ct, Bronx County 1978].) A landlord may have reason to know that the particular tenant will be present when other tenants generally would not. (See Fourth Avenue Management Corp. v Brosnahan, 117 AD2d 705, 706 [2d Dept 1986]; Metropolitan Life Ins. Co. v Scharpf, 124 Misc2d 1096, 1098 [Civ Ct, NY County 1984].) Or a landlord may have reason to know that a particular tenant will not be present when other tenants generally would be. (See 30-40 Associates Corp. v Destefano, 2003 NY Slip Op 50625[U][App Term, 1st Dept]; Mark Stamping Corp. v Mark Cabinet Manufacturing Corp.,160 Misc2d 555, 557 [Civ Ct, Kings County 1994]; Ancott Realty, Inc. v Gramercy Stuyvesant Independent Democrats, 127 Misc2d 490, 491 [Civ Ct, NY County 1985].)

In determining whether attempts at personal delivery are made with a "reasonable expectation of success", an agent's knowledge will be imputed to the landlord (see Center v Hampton Affiliates, Inc., 66 NY2d 782, 784 [1985], Lesnick and Mazarin v Cutler, 255 AD2d 367, 367 [2d Dept 1998]), and the landlord has an obligation to convey its knowledge to its attorney, who has an obligation to convey it to the process server (see id.; 417 East Realty Associates v Ryan, 110 Misc2d 607, 614 [Civ Ct, NY County 1981]; 60 West 109th St. Corp. v Taylor, 95 NYS2d 763, 766 [Manhattan Mun Ct 1950]). As noted above, Petitioner does not dispute that its witness's knowledge or lack of it would determine Petitioner's "reasonable expectation of success."

Perhaps not surprisingly, however, the state of Mr. Simkowitz's knowledge is disputed. There is, of course, no dispute that Respondent's business at the premises was closed when affixation and attempted personal delivery were made, nor is there any dispute that a business owned and operated by Jews might be closed on the Sabbath and the second day of Passover. Mr. Simkowitz testified that he would not work on those days. Also worthy of note is that Petitioner's counsel requested an extension of the deadline for post-hearing submissions, because [*5]the original deadline was "the last day of the Jewish holiday of Sukkos. Our client as an observant Jew does not permit us to serve papers or otherwise work on its behalf during the Jewish holidays." (Letter dated September 30, 2005.)

Petitioner argues that the first attempt at personal service, at 3:50 and 3:51 p.m. on Friday, should be effective since sunset did not occur until 7:42 p.m., and the religious practice of candle lighting would not have been observed until 7:24 p.m. (See Petitioner's Post-Hearing Memorandum at 11.) But, even ignoring that there is no support in the record for the foundation facts, Mr. Simkowitz himself testified that he "tr[ies] to end [his business dealings] by midday" on Fridays. (Transcript ["T"] at 80.) Similarly, the suggestion that the affixation and attempt at personal delivery on the second day of Passover should be deemed effective because "Passover lasts for seven days, with the first and seventh days observed as full holidays, when all work is prohibited" (Petitioner's Post-Hearing Memorandum at 11) is both devoid of foundation in the record, and fails in light of Mr. Simkowitz's testimony that he observes the second day as well. (T. at 33.)

Respondent's witness Freddy Halfon testified that he decides the days and hours of operation of Respondent's business, and that, for the entire time the business has operated on the premises, it has closed at 3:00 to 3:15 p.m. on Friday afternoon, usually not to reopen until Monday morning (he would sometimes work on Sunday), and has closed for every Jewish holiday, including the first two and last two days of Passover. There was no admissible evidence to contradict his testimony.

Mr. Halfon testified that, as a result of conversations with Petitioner's witness, Chaim Simkowitz, Petitioner's agent was aware that Respondent's business was closed for the Sabbath and Jewish holidays. Specifically, Mr. Halfon said he told Mr. Simkowitz that Respondent almost lost a large order because it could not meet the buyer's deadline for delivery with the business closed for the Sabbath, and that he once suggested to Mr. Simkowitz that Petitioner could save on costs by lowering the heat over the Sabbath when the business was closed.

Mr. Simkowitz denied these conversations, and any conversations with Mr. Halfon or any other tenant concerning religious practices. Mr. Simkowitz knew that Respondent's principals were Jewish, but testified that he did not know, one way or the other, if they were "observant", although he "believed" they were not. (T. at 42-44.) Most telling, however, was the following exchange during questioning by Petitioner's counsel: "QWhat time do you end your business dealings on Friday afternoon?AI try to end by midday.

. . . [*6]QWas there anything to lead you to believe whether or not this premise (sic), the one in question would be open after 3:00 on Friday, did you know one way or the other?A.My belief was that he is closed on Saturday. I don't think he closed 3:00 on Friday.

. . . Q.Did you know about his practices as to when he closed, and when he doesn't?A.Exactly no, I didn't know when he closes." (T at 80-81.)

Mr. Simkowitz's testimony as a whole, including the portion quoted and a colloquy with the Court concerning Mr. Simkowitz's understanding of Jewish law as it might relate to service of legal process on the Sabbath or other holy day (T.82-86, 89-90), suggests a flirting with deliberate ignorance. In any event, the Court finds and concludes on all of the evidence that Mr. Simkowitz, and therefore Petitioner, had reason to know that Respondent's business was likely to be closed when affixation and attempted personal delivery were made.

The Court emphasizes that none of the three attempts at personal delivery were made at a time when there was a "reasonable expectation of success" (see Naman v Sylveen Realty Co., 222 AD2d at 565), requiring the conclusion that "reasonable application" (see RPAPL §735[1]) had not been made prior to resorting to affixation and mailing. The Court's ruling here does not address the number of attempts that would have sufficed as "reasonable application" if any had been made at a time when Petitioner did not have reason to know that Respondent's business was likely to be closed.

Since the Notices of Termination were not served in accordance RPAPL §735(1), Petitioner failed to satisfy a condition precedent to commencement of these proceedings (RPL §232-a), and the proceedings must be, and hereby are, dismissed.

Respondent shall serve a copy of this Decision and Order with Notice of Entry upon Petitioner and the appropriate clerk(s) within 20 days after entry.

November 4, 2005

Judge, Civil Court