Parkview Apts. Corp. v Cole

[*1] Parkview Apts. Corp. v Cole 2009 NY Slip Op 52766(U) [27 Misc 3d 1219(A)] Decided on December 5, 2009 Just Ct Of Town of Ossining, Westchester County Koba, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through May 12, 2010; it will not be published in the printed Official Reports.

Decided on December 5, 2009
Just Ct of Town of Ossining, Westchester County

Parkview Apartments Corp., a New York Cooperative Housing Corporation, Petitioner-Landlord,

against

Akin Cole 117 South Highland Avenue, Apt. 5H Ossining, NY 10562, Respondent-Tenant.



255-07



Miano and Colangelo, Esqs.

Attorney for Petitioner

550 Mamaroneck Ave, Suite 405

Harrison, New York 10528

Maxine G. Walker, Esq.

Attorney for Respondent

107 Maple Avenue

Mount Kisco, New York 10549

Nancy Quinn Koba, J.

Petitioner/landlord, Parkview Apartments Corp. ("Parkview"), commenced this holdover proceeding to recover possession of residential premises from respondent/tenant, Akin Cole ("Cole"), and a money judgment for maintenance arrears in the sum of $2,272.33 with interest from October 2007, together with attorneys' fees, costs and disbursements. Upon Cole's failure to appear on the return date of the petition, November 1, 2007, a final judgment and a warrant of eviction (Connolly, J) was awarded to Parkview on default.

Cole now moves for an order, pursuant to CPLR §5015 (a) (4), vacating the final judgment and warrant of eviction upon the ground that this Court lacked personal jurisdiction over him due to the alleged improper service of the notice of petition and petition, or, alternatively, for an order, pursuant to CPLR §317, vacating the final judgment and warrant of eviction upon the ground that he did not personally receive notice of the petition in time to defend and has a meritorious defense to the petition and the motion is brought within one year after he allegedly obtained knowledge of the entry of the judgment. Cole also seeks an award of attorney's fees incurred herein. [*2]

Parkview opposes the motion and cross moves for an order dismissing Cole's motion upon the ground that the issues raised therein were previously litigated in a proceeding brought by Cole in the Supreme Court of the State of New York, County of Westchester titled, Akin Cole v. Parkview Apartment Corp, bearing index number 3588/09 ("Cole Action") and decided by an Order (Bellantoni, J.) issued on June 8, 2009. Parkview also seeks an award of attorney's fees incurred herein.

The following papers were read: Notice of Motion, Affirmation of Maxine Walker, Esq., and Exhibits "A" through "F" annexed thereto;Notice of Cross Motion, Affirmation of Joseph R. Miano, Esq. and Exhibits "A" through "Q" annexed thereto;Reply Affirmation of Maxine Walker, Esq.; andReply Affirmation of Joseph R. Miano, Esq.

Upon the foregoing papers and for the reasons set forth below, it is Ordered that Cole's motion to vacate the final judgment and warrant of eviction is denied and that Parkview's cross motion for an award of attorney's fees incurred in connection with Cole's motion is also denied.

PROCEDURAL AND FACTUAL BACKGROUND

This holdover proceeding was commenced by Parkview against Cole seeking possession of the residential premises located at 117 South Highland Ave, Apt. 5H, Ossining, New York (the "premises"); terminating Cole's proprietary lease; cancelling his stock certificate and awarding judgment for maintenance due in the sum of $2,272.33 with interest since October 2007, together with attorneys' fees, costs and disbursements.

On or about January 27, 1989, Cole entered into a Proprietary Lease (the "Lease") with Parkview granting him ownership of 570 shares allocated to the premises. Paragraph 31 of the Lease permitted Parkview the right to terminate the Lease upon the happening of any of the events mentioned in subdivisions (a) to (j) thereof. Subdivision (d) permitted termination if Cole were in default in the payment of any rent, additional rent or any installment thereof and failed to cure such default within ten (10) days after written notice from Parkview.

Pursuant to the affidavit of service executed by Jennifer Kruglinksi on September 28, 2007, she served a Ten Day Notice to Cure upon Cole by mailing it to him at his business address, Elmsford Executive Park, Bldg. 5, 2269 Saw Mill River Rd, Elmsford, NY 10523. The Ten Day Notice demanded that Cole cure his default in the payment of maintenance on or before the expiration of ten days from the service of the notice. The notice further advised that in the [*3]event Cole failed to cure the default, summary proceedings would be commenced against him. The notice was signed by William Archer of Archer Property Management on behalf of Parkview. Cole did not pay the maintenance owed within the time prescribed by the notice. He denies receiving the Notice to Cure, but he does not deny the address to which it was sent is his correct business address.

Carlos Castro, a Town of Ossining Constable, in his affidavit of service, attested that the notice of petition and petition were served upon Cole on October 24, 2007 at 7:30 p.m. by affixing the same to the door of the premises and then mailing copies to Cole at the premises via regular first class mail and certified mail on October 25, 2007. Mr. Castro attempted to serve Cole at the premises on October 23, 2007 at 7:45 p.m. and October 14, 2007 at 11:35 a.m. before resorting to conspicuous place or "nail and mail" service. The petition was returnable on November 1, 2007 at 7:00 p.m. at the courthouse. Parkview's counsel appeared. Cole failed to appear and answer the petition. A final judgment and warrant of eviction were granted to Parkview on default. The judgment and the warrant were signed (Connolly, J.) on January 17, 2008. Cole denies receiving any copies of the notice of petition or the petition.

Cole made maintenance payments to Parkview from November 15, 2007 through June 10, 2008. A 72 hour notice and the warrant were served upon Cole on June 6, 2008; Cole was evicted from the premises and the locks were changed on June 11, 2008. Per Parkview's records, Cole did not make any further maintenance payments after June 10, 2008. Cole alleges he made payments through October 2008. Although he annexes two checks, dated September 10, 2008 and October 10, 2008, to his affidavit, Cole did not include any proof the checks were actually sent to or cashed by Parkview.

On or about January 13, 2009, Parkview mailed to Cole at his business address a Notice of Sale of Personal Property to Satisfy Lien. The notice informed him that his interest in the premises would be sold at auction unless the lien was satisfied on or before January 28, 2009. The public auction would be held on February 25, 2009. On January 26, 2009, Cole's counsel made an offer to resolve the lien in installment payments beginning in April 2009; Parkview rejected the proposal. Cole presented a check in the amount of $12, 485.18 payable to Parkview on the date of the auction. The payment was rejected as it was for an insufficient sum and was not payable to Miano & Colangelo as required by the Notice of Sale. The auction of the shares allocated to the premises began with an opening bid on behalf of Parkview in the amount of $14,719.13. Parkview was the high bidder and a Certificate of Sale and Fact was issued by the auctioneer.

Cole responded by filing an Order to Show cause in the Supreme Court, Cole Action, seeking an order voiding the sale of Cole's interest in the premises; compelling Parkview to accept the sum of $12,485.18 in full satisfaction of the lien; transferring the shares allocated to the premises to Cole and directing Parkview to pay Cole's attorneys fees in the amount of $1000.00. Cole argued that he attempted to satisfy the lien before the sale and that his efforts to do so were thwarted by Parkview and its agents, who allegedly failed to apprise him of the full [*4]sum due. Parkview cross moved for an order dismissing the Order to Show Cause pursuant to CPLR §§3211(a)(1), (2) and (8) and treating the cross motion as one for summary judgment pursuant to CPLR §§3211(c) upon the ground that Cole's right to occupy the premises terminated when the Final Judgment and Warrant of Eviction were awarded to Parkview and upon the ground that the shares allocated to the premises were properly noticed for sale pursuant to the terms of the Lease following the lawful eviction of Cole from the premises. Cole did not oppose Parkview's cross-motion.

On June 8, 2009, a short form order (Bellantoni, J) was issued granting defendant Parkview's unopposed cross motion and denying Cole's motion in the Cole Action. Justice Bellantoni found that plaintiff Cole's right to occupy the premises and redeem the shares allocated thereto was extinguished pursuant to the terms of the lease and upon execution of the final judgment and warrant of eviction. A copy of the order with notice of entry was served upon Cole on June 22, 2009; no appeal has been taken from this order. Instead, Cole brought the within motion.

DISCUSSION/ANALYSIS

A defendant who alleges the court lacked jurisdiction over his person to enter a default judgment against him has two options, i.e. he can appear and contest the validity of the judgment in the action or he can wait and collaterally attack the validity of the judgment against him when steps are taken to enforce it. See, Boorman v. Deutsch, 152 AD2d 48, 547 NYS2d 18, (1st Dept. 1989), appeal dismissed, 76 NY2d 889, 561 NYS2d 550 (1990). "The judgment, however, is presumptively valid until reversed or set aside." Id. at 52, citing Hughes v. Cuming, 165 NY9 91; Cook v. Cook, 342 US 126, 128. Where a party has appeared and judgment is entered against him based upon his default on a motion for summary judgment, the judgment is on the merits. Id. at 54. See also, QFI v. Shirley, et. al., 60 AD3d 656, 874 NYS2d 238 (2nd Dept. 2009).

Cole did not first exercise the option to appear and contest the validity of the judgment in this action. Rather, he invoked the jurisdiction of the Supreme Court by filing an order to show cause to void the sale of the shares allocated to the premises, which sale was in effect an action to enforce the subject final judgment. When Parkview served a cross-motion to dismiss and for summary judgment upon the ground the sale was valid as Cole's right to occupy the premises terminated with the entry of the final judgment of possession and issuance of the warrant of eviction in January 2008, Cole defaulted on the cross-motion, and it was granted as unopposed. The cross-motion squarely placed the validity of the judgment of possession in issue before the Supreme Court, and its order of June 8, 2009 necessarily resolved the issue of whether this court lacked in personam jurisdiction over Cole against him. Accordingly, Cole's motion seeking to vacate the final judgment awarded to Parkview is barred by the doctrine of res judicata. "The doctrine of res judicata operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same factual [*5]grouping or transaction and which should have or could have been resolved in the prior proceeding." Kafka v. Meadowlark Gardens Owners, Inc., 34 AD3d 676, 826 NYS2d 83 (2nd Dept. 2006) citing Luscher v. Arrua, 21 AD3d 1005, 1006-1007, 801 NYS2d 379 [2005] quoting Koether v. Generalow, 213 AD2d 379, 380, 623 NYS2d 328 [1995]. It is designed to "relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources and, by preventing inconsistent decisions, encourage reliance on adjudication." The Insurance Company of the State of Pennsylvania v. HSBC Bank USA, 10 NY3d 32, 38, 852 NYS2d 812 (2008). Since the validity of the final judgment has been established, Cole is precluded from litigating its validity again in this action.

In any event, Parkview presented prima facie evidence of proper service of the notice of petition and the petition upon Cole. Sturino v. Nino Tripicchio & Son Landscaping, et. al., 65 AD3d 1327, 885 NYS2d 625 (2nd Dept. 2009). The affidavit of service demonstrates that the constable exercised due diligence to serve Cole personally at his residence before resorting to conspicuous place service, thereby satisfying the requirements of both RPAPL §735 (1) and CPLR §308 (1). He made three attempts to serve Cole at his residence at times he could reasonably be expected to be present before resorting to conspicuous place service, and the Constable also mailed the notice of petition and petition to Cole's residence within one day of affixing the same to the door of his residence. As such, the service was proper and was sufficient to confer personal jurisdiction over Cole. See, Lemberger v. Khan, 18 AD3d 447, 794 NYS2d 416 (2nd Dept. 2005); Baer v. Lipson, 194 AD2d 787, 599 NYS2d 618 (2nd Dept. 1993). Cole's unsubstantiated denial of service of the notice of petition or petition is insufficient to rebut Parkview's prima facie showing of proper service. See, Rosario v. Beverly Road Realty Company, 38 AD3d 875, 833 NYS2d 166 (2nd Dept. 2007). Nor are they sufficient to overcome the presumption that he received the properly addressed and mailed notice to cure, notice of petition and petition. See, Eveready Insurance Company v. France, 66 AD3d 776 (2nd Dept. 2009); Caprio v. 1025 Manhattan Avenue Corp., 63 AD3d 656, 880 NYS2d 192 (2nd Dept. 2009). Cole's conclusory denial that he did not live at the premises at the time of service and that Parkview was allegedly aware that he did not live there because he asked for permission to sublet the premises is similarly insufficient to overcome Parkview's prima facie evidence of proper service. The only evidence in the record of Cole's residence is at the subject premises. He does not state the address at which he claims to have been residing in October 2007; does not indicate when he began to reside at the unidentified location; does not proffer any proof that he changed his address with the post office or the department of motor vehicles and does not provide a copy of written information given to Parkview that he resided elsewhere in October 2007 per RPAPL §735 (1). See, Argent Mortgage Company, LLC v. Vlahos,66 AD3d 721 (2nd Dept. 2009); 235 West 22nd Street, LLC v. Genshaft, Lexis 2204, Slip Op. 51822U (App. Term, 1st Dept. 2009). Thus, the mailing of the notice of petition and petition to him at the premises complied with the provisions of RPAPL§735 (1).

Cole is also not entitled to relief pursuant to CPLR §317 as he failed to demonstrate that [*6]he did not personally receive notice of the notice of petition and the petition in time to defend the action. Sturino v. Nino Tripicchio & Son Landscaping, et. al., 65 AD3d 1327, 885 NYS2d 625 (2nd Dept. 2009). Moreover, the motion is not brought within one year after receiving notice of the final judgment as required by CPLR §317. At the latest, Cole received notice of the final judgment when he was served with the warrant of eviction and was evicted from the premises in June 2008 and the within motion was served fifteen months later on September 3, 2009.

Generally, attorney's fees are not recoverable by the prevailing party in a action unless an award is "authorized by agreement between the parties, statute or court rule." Hooper Associates, Ltd v. AGS Computers, Inc., 74 NY2d 487, 491, 549 NYS2d 365 (1989). Although Parkview seeks an award for attorney's fees pursuant to the lease, a complete copy of the lease has not been presented to the court so it can determine whether or not an award of fees would be authorized in this action. Therefore, Parkview's cross-motion seeking an award of attorney's fees is denied.

The foregoing constitutes the Decision and Order of the Court.

Dated:December 5, 2009

________________________________

HON. NANCY QUINN KOBA

Town Justice