1626 Second Ave. LLC v Notte Rest. Corp.

[*1] 1626 Second Ave. LLC v Notte Rest. Corp. 2008 NY Slip Op 52490(U) [21 Misc 3d 1143(A)] Decided on December 11, 2008 Civil Court Of The City Of New York, New York County Mendez, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 11, 2008
Civil Court of the City of New York, New York County

1626 Second Avenue LLC, Plaintiff,

against

Notte Restaurant Corp., Respondent-tenant, "John Doe" and " Jane Doe", Respondents-Undertenants.



L & T 60351/2008



Rose & Rose, by Paul Coppe, Esq., for petitioner,

Rogers Wughalter Kaufman & Corredine by Andrea Zinno, Esq., for Respondent.

Manuel J. Mendez, J.

This case was referred to this court for a traverse hearing and trial. The court heard the parties on the traverse on November 7 and 13, 2008 following which it reserved decision. After considering the testimony of the witnesses presented by both parties and reviewing the applicable law this court grants the traverse and dismisses the petition.

FACTUAL BACKGROUND

On September 1, 2007 the parties entered into a written ten year lease agreement commencing on September 15, 2007 and ending August 30, 2017, for premises located at 1626 Second Avenue, New York, NY 10028. The premises were to be utilized as a "Wine Bar and Eatery", in effect, a restaurant.[See lease Respondent's A in Evidence]. Respondent took possession of the premises and began the requisite renovations for the operation of its restaurant business. These renovations were not completed until March 1, 2008 when the restaurant officially opened for business.

In February 2008 Respondent had fallen in arrears on its rent and additional [*2]rent in the amount of $97,755.61. On February 26, 2008, while renovations were still ongoing, Petitioner attempted to serve upon it a demand for rent [FN1]. Mr. Manzoor Rahaman a licensed New York City Process Server employed by the Zellner Wood, Inc., Agency stated that on this date he appeared at the premises at 1:35P.M. and served the five day rent demand by serving an individual named "Edgar" who identified himself as the manager.[FN2] Mr. Ramahan stated that when he arrived at the premises, a restaurant, a Latino person directed him to the person in charge. The person he was directed to told him his name was "Edgar", that he was the manager and would give the papers to the owner once he arrived. The next day the mailing receipts were prepared by the agency, he personally stuffed the envelopes and brought them to the post office where he mailed a copy of the rent demand to Respondent via regular and certified mail. He also mailed a copy of the rent demand to Mr. Steven P. Salsberg, to 350 East 82nd. Street New York, NY 10028. The mailing receipt to the respondent contains the wrong zip code as it was sent to zip code 10128 and the mailing receipt to Mr. Salsberg contains an erroneous address as he does not reside at the address where the rent demand was sent.[FN3]

On cross examination Mr. Ramahan admitted that there is an inconsistency between his log book entry and his affidavit of service. The log book entry refers to service upon "Edgar, a manager", while the affidavit of service refers to "service upon "John Doe refused name-employee authorized to accept service." Mr. Ramahan stated that normally he would write "Edgar Doe" and attributes the inconsistency on the fact that he did not prepare the affidavit of service, although he read it prior to signing it.[FN4] Mr. Ramahan also admitted that the mailing was sent to the wrong zip code and explained it by saying that this was the zip code given in the five day demand.

On March 14, 2008 Petitioner attempted to serve a Notice of Petition and Petition upon Respondent. Ms. Renuka Persaud, a licensed New York City Process Server employed by the Zellner Wood, Inc., Agency stated that on this date she appeared at the premises at approximately 10:52 A.M.,and approached a person who was behind a counter. She told the person, a female, she was there to see a manager or someone who could accept service and the person said that she could accept service. Following this on March 17, 2008, after the agency had prepared the envelopes and mailing receipts, she stuffed the envelopes with copies of the Notice of Petition and Petition and brought them to the post office. At the post office the postal clerk took them and stamped the receipt. Following this the mailing receipts were delivered to her agency where they were kept and filed. Again the receipts show that mailings were done to Respondent at the wrong zip code and to [*3]Steven P. Salsberg at the wrong address. [FN5] Following the testimony of Ms. Persaud Petitioner rested.

Respondent presented the testimony of three witnesses. The first to testify was Mr. Steven P. Salsberg, part owner and officer of Respondent, who laid the foundation for the admission in evidence of the lease agreement between the parties.[FN6] Mr. Salsberg stated that he does not reside at 350 East 82nd. Street, he resides at 160 E. 88th Street, Apt.1B N.Y.NY 10128,[FN7] which is the place where he receives his mail. He did not receive a copy of the rent demand at the address where he lives or any where else. Finally Mr. Salsberg stated that Paragraph 59, page 18 of the lease states that any notices to the corporation are to be delivered to the corporation to 160 E. 88th St. 1B N.Y.NY 10128 or to Charles Linn, Esq., 901 N. Broadway, North White Plains, NY 10603.[FN8]

On Cross examination Mr. Salsberg was asked how he knows the zip code to the business premises is 10028 and not 10128 and he stated knowledge based on mail received, vendors receipts, filing liquor license application, appearance on the community board, the parties lease, documents, applications and government permits.

Respondent next presented Mr. Charles Linn, Esq.,who stated that he represented Respondent in the lease negotiations and received a copy of the original lease. He stated that notices to Respondent were to be sent to the corporation at 160 E. 88th St. 1B N.Y.N.Y.10128 and to him at his address, which is still accurate. He further stated that he did not receive a copy of the five day notice or of the petition in this case and had never seen this documents prior to his appearance in court. There was no cross examination of this witness.

Respondent next presented Mr. Nikola Camaj, part owner and Manager of the restaurant. He resides at 350 E. 82nd. St. 5U N.Y.NY 10028 [FN9], which is located approximately two blocks from the premises. He stated that there is a policy in place for employees to call him whenever there is a delivery being made of anything, papers or restaurant supplies, and that they are not to accept anything on behalf of the corporation without his authorization. The restaurant was closed on February 26, 2008 because they were still doing renovations. There were four individuals working at the premises that day, contractors doing construction work, none of which were employees of the corporation. On this day no one called him to say there was a delivery of papers being made. He also denies receiving any mail addressed to him or to Steven Salsberg at his residence. [*4]

On March 14, 2008 the restaurant was opened for business but no papers were delivered to him or left for him because none of his employees called to say there were papers being delivered.

On Cross examination he stated that on February 26 there were four individuals doing construction work on the premises, one of them was an individual named Tony Guza, who is dark skinned and in his 40's resembling the description given in the process server's affidavit of service. He also admitted that there were females working for him on March 14, that fit the description in the process server's affidavit of service. He again denied having been called to receive delivery of legal documents or having received them at home. He reiterated that his employees would have let him know if any of them had received any of the papers.

Was the service of the five day rent demand and the notice of petition and petition defective? Yes.

LEGAL ANALYSIS

RPAPL§ 735 (1)(b) describes the manner in which service of process should be made upon a corporation in order for the court to obtain jurisdiction. It requires that service be made upon "a corporation by delivering a copy of the pleading at the premises sought to be recovered and if the principal office or principal place of business of the corporation is not located at the property sought to be recovered and petitioner has written information of the principal office or principal place of business, at the last place as to which petitioner has such information, or if 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 petitioner has such information."

This section of the RPAPL must be read and applied in conjunction with CPLR § 311(a)(1) which describes the manner in which service of process must be made upon a corporation in order for the court to obtain jurisdiction. It requires that service be made 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." ( See Service Station Realty Corp., v. Universal Fuel Service, Corp., et., al., 7 Misc 3d 1021(A), 2005 NY Slip Op 50693 (U)[Dist. Ct. Nassau Ct. 2005]).

MAILING SENT TO WRONG ZIP CODE AND TO

WRONG CORPORATE ADDRESS.

Respondent argues that service was defective because the rent demand and the notice of petition and petition were mailed to the wrong zip code. Petitioner retorts that mailing to the wrong Zip Code is not fatal to this proceeding.

In accordance with the United States Postal Service DMM § 602 a delivery address must contain at least the following elements:

1- intended recipient's name or other identification. [*5]

2- private mailbox designator.

3- street and number (including the apartment number...).

4- City and State.

5-Zip Code .

If the mailing went to the wrong Zip Code it can be argued that the address is defective and jurisdiction lacking; However, this issue has been previously decided by the courts. The test is whether the mailing can be delivered by the post office and whether it was actually delivered. In Donohue v. La Pierre, 99 AD2d 570[ App. Div. 3rd. Dept. 1984], a personal injury action, the issue was whether service of process was proper. The process server mailed a copy of the summons to defendant to an address in "Colonie New York", a town that had no post office or zip code, when it should have been mailed to "Albany New York, 12205" the post office through which mail delivered to defendant was being routed. The Appellate Division Third Department stated in dicta " We do not believe that the mailing requirement of the statute is only satisfied by using the exact mailing address pursuant to the regulations and organization of the United States Postal Service." The Court reversed Special Term and denied the motion on the facts of the case, finding that "plaintiff offered proof that two envelopes mailed to specific residences in Colonie, New York, were received despite the fact that, for purposes of the organization of the United States Postal Service, they should have been addressed to Albany, New York and Loudonville New York." Another factual predicate for the court's decision was that "at the scene of the accident defendant reported his address to the police as 1950 Central Avenue Colonie, New York 12222." Since plaintiff mailed a copy of the summons to the address provided by the defendant the court found that the mailing requirement had been satisfied.

In Bowery Savings Bank v. 130 E. 72nd St. Realty Corp., 180 AD2d 559 [App. Div. 1st. 1992], the First Department affirmed the decision of Supreme Court and found service proper when "although appellant's receipt of the actual order of reference with notice of entry was delayed by an improper zip code, appellant actually received notice of the referee's hearing six days prior to the scheduled event." Similarly in Rochdale Holding Corp., v. Neuendorf, 2 Misc 3d 133(A)2004 NY Slip Op 50184(U)[App. Term 1st. Dept. 2004], the Appellate Term First Department Affirmed Civil Court New York County, finding that the mailing in a Landlord-Tenant summary non-payment proceeding was proper, and denied traverse despite the mailing being addressed to a wrong zip code, when the mailing was actually received by the Respondent.

On the other hand when the mailing is done to the wrong city and zip code and defendant claims he did not receive notice by mail ( See Avakian v. De Los Santos, 183 AD2d 687, 583 NYS2d 275 [App. Div. 2nd. Dept., 1992]), or when the mailing does not contain a zip code and the respondent defaults ( New York Housing Authority v. Fountain, 172 Misc 2d 784, 660 NYS2d 247 [Civ. Ct. B.X. Cty. 1997]), court's have found the mailing to be defective and dismissed for lack of jurisdiction ( See Regency Towers LLC, v. Landou, 10 Misc 3d 994, 807 NY S. 2d 863 [Civ. Ct. NY 2006]). An incorrect address on a mailing or the inclusion of the wrong zip code will lead to dismissal when petitioner cannot prove, at traverse, that the mailing was actually delivered. [*6]

The process servers' affidavits and court testimony show that the mailing to Respondent's corporate office or principal place of business was sent to 350 East 82nd Street New York, NY 10028. This is not the correct mailing address or zip code of the corporate Respondent. The correct mailing address in accordance with Paragraph 59 of the lease rider is 160 East 88th Street Apt. 1B, New York, NY 10128.

Summary proceedings, being a creature of statute, require strict compliance with the applicable statutory requirements in order to confer jurisdiction on the court. When the statute requires multiple acts to effect service omission of any mandated act requires dismissal ( Lana Estates Inc., v. National Energy Reduction Corp., 123 Misc 2d 324, 473 NYS2d 912 [Civ. Ct. Queens, 1984];Main Street Mall Corp., v. NR Store, Inc., 155 Misc 2d 118, 587 NY S. 2d 117 [City Court, New Rochelle, 1992]; Columbus Prop. Inc., v. ISKS Realty Corp., 163 Misc 2d 446, 621 NYS2d 277[Civ. Ct. NY Cty, 1994]). The fact the defendant has received prompt notice of the action is of no moment. Notice received by means other than those authorized by the statute does not bring a defendant within the jurisdiction of the court ( Macchia v. Russo, 67 NY2d 592, 496 NE2d 680, 505 NYS2d 591 [1986]).

Since the additional mailings were sent to the wrong zip code, the wrong corporate address and they were not received by the respondent, the proceeding must be dismissed.

RENT DEMAND NOT SERVED IN ACCORDANCE

WITH LEASE TERMS OR UPON A PERSON AUTHORIZED

The lease herein requires that "notices, requests and demands to the tenant be in writing" to the address indicated on the lease. A lease is no different from a contract and is to be enforced in accordance the expressed intention of the contracting parties, when its terms are not ambiguous, but are plain, simple and unequivocal

( A.A.A. Realty Corporation, v. Harrigan's Café Inc., 113 Misc. 141[NY Munic. Ct., Borough of Manhattan, 1920]).Paragraph 59 of the lease rider is plain, simple and unequivocal. It requires that notices, requests and demands be mailed to the corporation or its attorney to a specific address. According to the affidavit of service, the testimony of its process servers and that of respondent's witnesses, this was not done by the petitioner.

Service of notices must be done in accordance with the lease provisions in order for service to be proper. Failure to serve in the precise manner prescribed in the lease requires dismissal. ( See Metropolitan Transportation Authority v. Cosmopolitan Aviation Corporation, 99 AD2d 767 [App. Div. 2nd Dept. 1984];Bogatz v. Extra Touch International, Inc., 179 Misc 2d 1029 [Civ. Ct. Kings, [*7]1999]; White Plains Galleria Limited Partnership, v. Woodlawn Partners, 4 Misc 3d 1010(A)[ White Plains City Ct. 2004];496 Broadway Realty, LLC., v. Kyung Sik Kim, 18 Misc 3d 1119(A), 856 NYS2d 498 [Civ. Ct. NY Cty. 2008]).

Petitioner's process server served the rent demand on an individual who was not one of the person's enumerated in the statute capable of receiving service of process on behalf of a corporation, and who was not an employee of respondent ( See World's busiest Corner, Corp., v. cine 42nd. Street Theater Corp.,134 Misc 2d 281, 510 NYS2d 796 [1986]). Mr. Camaj testified truthfully that on February 26, 2008 the restaurant had not yet opened for business and that the only individuals on the premises were contractors doing construction work. This court does not credit the testimony of petitioner's process server that he was directed by an employee to "Edgar, a manager" who told him that he was authorized to accept service on behalf of the corporation. The process server's testimony is in conflict with his sworn affidavit of service which indicates he served " John Doe, an employee authorized to accept service".

Since service of the rent demand was not done in accordance with the lease, or the RPAPL this proceeding must be dismissed ( Service Station Realty Corp., v. Universal Fuel Service Corp., 7 Misc 3d 1021(A)[Dist. Ct. Nassau, 2005]).

CONCLUSION

Service of the rent demand was not done in accordance with the lease provision which requires that notices be sent to the corporate Respondent to the address specified on the lease or the corporation's attorney to the address specified on the lease, none of which has changed. Service of the rent demand was also defective in that it was not done by serving a person authorized to accept service. The process server left the rent demand with an individual that was not an employee of the corporation. Furthermore, the additional mailing of the rent demand was not sent to the corporations offices in accordance with RPAPL 735(1)(b). Instead it was sent to the premises sought to be recovered bearing an incorrect zip code and to Mr. Steven Salzberg to an incorrect address. Respondent's witnesses stated that this mailing was not received and Petitioner failed to prove otherwise.

Service of the Notice of Petition and Petition was not done in accordance with the RPAPL because the additional Mailing, sent to the premises sought to be recovered contained an incorrect zip code, the mailing sent to the corporation's offices was sent to Mr. Steven Salsberg to an incorrect address, Respondent's witnesses testified that the mailings were not received and petitioner failed to prove otherwise.

Accordingly, for the foregoing stated reasons traverse is granted and the petition is dismissed.

This constitutes the decision and order of this court. [*8]

Dated: December 11, 2008________________________

Manuel J. Mendez

Judge Civil Court Footnotes

Footnote 1:Demand titled "commercial five day notice" part of court file.

Footnote 2:See Petitioner's 1 & 2 in evidence, license and log book.

Footnote 3:See petitioner's 3 in evidence mailing receipts.

Footnote 4:See affidavit of service in court file.

Footnote 5: See Petitioner's 5 Log book and Petitioner's 6 Certified mailing receipt in evidence.

Footnote 6:Respondent's "A" in evidence.

Footnote 7:See Respondent's "B" Salsberg's license.

Footnote 8:See Respondent's "A" lease in evidence at Pg. 18.

Footnote 9:See Respondent's "C" Camaj's license showing his residence address.