McDee Family LP v Royal T's Gymnastics, Inc.
Annotate this CaseDecided on June 8, 2007
District Court of Nassau County, First District
McDee Family LP, Petitioner(s)
against
Royal T's Gymnastics, Inc., Respondent(s)
SP 1571/07
Douglas L. Fromme, P.C.
Brancato, Brancato & Brancato
Scott Fairgrieve, J.
The motion by respondent, Royal T's Gymnastics, Inc., to dismiss the complaint herein pursuant to CPLR 3211(a)(2), (7) and (8) is denied. Respondent alleges that the Court does not have subject matter jurisdiction, that the pleadings fail to state a cause of action, and that the Court lacks jurisdiction over the person of the respondent.
The first two grounds, as argued by the respondent, are quickly and easily addressed. There is no question that the Court has subject matter jurisdiction over this summary proceeding to recover possession of real property for the non-payment of rent. (Uniform District Court Act §204) There is likewise no question but that the Notice of Petition adequately set forth the date, time, and place of the hearing as required by RPAPL §731(2). The Notice specified the time (9:30 am), the date (April 6, 2007), and the place (the Landlord Tenant Part of the Nassau County District Court, located at 99 Main Street, Hempstead, New York). While no specific room number is given, the Court notes that neither RPAPL 731(2) nor the officially prescribed form for a Notice of Petition set forth in 22 NYCRR 212.42(b) requires a room number, but merely the part name or number where the matter is to be heard. In this case, the part is identified as the Landlord Tenant Part. It also contained the required notice regarding preclusion of defenses. (RPAPL §731[2] )
The respondent also argues that the Court lacks jurisdiction over the person of the defendant, a corporation, because the Three Day Notice, the Notice of Petition, and the Petition were not properly served in that the various mailing requirements of RPAPL §735(1), applicable where delivery is made to a person of suitable age and discretion and/or substituted service is used, were not complied with. Respondent specifically argues that the regular and certified mailings were critical pursuant to RPAPL §735(1) and that CPLR 311, regarding service upon a corporation, is inapplicable. This contention is also without merit and respondent's reliance upon the cases which appear to so hold is misplaced.
RPAPL §735(1)(b) provides: [*2]
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 both by registered or certified mail and by regular first class mail,
(b) if a corporation, joint-stock or other unincorporated association, as follows: at the property sought to be recovered, and if the principal office or principal place of business of such corporation, joint stock or other unincorporated association is not located on the property sought to be recovered, and if the petitioner shall have written information of the principal office or principal place of business within the state, at the last place as to which petitioner has such information, or if the petitioner shall have no such information but shall have written information of any office or place of business within the state, to any such place as to which the petitioner has such information. Allegations as to such information as may affect the mailing address shall be set forth either in the petition, or in a separate affidavit and filed as part of the proof of service.
In the instant matter, the Three Day Notice and, subsequently, the Notice of Petition and Petition, were delivered personally to Travol Williams, an officer of the respondent. Copies were also mailed by certified and regular mail, though, as will be shown, whether or not such mailings were made is a superfluous issue. As cited above, the statute provides that service may be made upon a corporation personally, by service upon a person of suitable age and discretion, or by "nail and mail." The method and specific mailings required in the second and third types of service are set forth in the statute and differ from the requirements of the CPLR in that the RPAPL requires a double mailing. However, the method for personally serving a corporation is not described in the RPAPL. Nevertheless, CPLR 311(a) provides in relevant part:
Personal service upon a corporation or governmental subdivision shall be made by delivering the summons as follows:
(1) upon any domestic or foreign corporation, to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service. [*3]
Respondent cites several cases for the proposition that CPLR 311 is inapplicable to summary proceedings and that RPAPL §735(1) applies exclusively. This is true where one is dealing with a method of service other than personal service because the statute, RPAPL §735, sets forth specific mailing requirements which supercede the general applicability of the CPLR. However, RPAPL §735(1) is silent as to how a corporation may be personally served, and resort must then be had to the CPLR. (Service Station Realty Corp. v. Universal Fuel Service, 7 Misc 3d 1021(A); Manhattan Embassy Co. v. Embassy Parking Corp., 164 Misc 2d 977; Milchman v. Wonderful Discount Ctr., Inc., NYLJ, Jan. 5, 1993, at 22. col. 4; G & L Building Corp., V. Oceanside Karate, Inc. January 20, 1999 N.Y.L.J. 34, col. 5) These cases are also in accord with Landlord and Tenant Practice in New York, Daniel Finkelstein and Lucas A. Ferrara, § 14:144, wherein it is stated:
Personal delivery to a corporate respondent under NY Real Prop. Acts Law § 735 should comply with N.Y.C.P.L.R. 311(a)(1), which governs service of process upon a corporation in civil actions. The latter statute permits personal delivery to be made upon an officer, director, managing or general agent, cashier or assistant cashier, or any other agent authorized by appointment or law to receive service on the entity's behalf.
It is well settled that all parts of a statute must be harmonized with each other as well as with the general intent of the whole statute, and effect and meaning must, if possible, be given to the entire statute and every part and word thereof. (McKinney's Statutes, § 98; Matter of Yolanda D., 88 NY2d 790) If possible, words are not to be rejected as superfluous when it is practicable to give to each a distinct and separate meaning. (McKinney's Statutes, § 231; In re Tristram K., 36 AD3d 147) In addition, if a construction sought to be placed on a statute produces an absurdity it is, as a general rule, to be discarded. Instead, the court should adopt a construction which avoids absurdity, or absurd consequences. Finally, it is the duty of the courts to so construe two statutes that they will be in harmony, if that can be done without violating the established canons of statutory interpretation. (McKinney's Statutes, §398)
Viewed in this way, it is clear that the words "personally delivering them to the respondent," contained in the beginning of RPAPL §735, would be meaningless if a corporation could only be served through substituted or "nail and mail service," as argued by the respondent. It would also result in the absurd conclusion that a corporation in a summary proceeding could never be served personally.
Accordingly, the Court concludes that service upon Travol Williams, an acknowledged officer of the respondent corporation, constituted personal service upon the corporation pursuant to RPAPL §735 and CPLR 311, and the motion to dismiss for lack of personal jurisdiction is therefore denied. [*4]
This matter shall appear on the calendar for June 19, 2007, at 9:30 a.m., for conference.
So Ordered:
/s/
DISTRICT COURT JUDGE
Dated:June 8, 2007
CC:
SF/mp
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