Milazzo v Kyung-Ah Kim

[*1] Milazzo v Kyung-Ah Kim 2018 NY Slip Op 28279 Decided on September 13, 2018 District Court Of Nassau County, First District Fairgrieve, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on September 13, 2018
District Court of Nassau County, First District

Daniel Milazzo, Petitioner,

against

Kyung-Ah Kim, and "JOHN and JANE DOE," Respondents.



LT-001976-18NA



Matthew Tannenbaum, Esq., attorney for Petitioner, 825 East Gate Boulevard, Suite 308, Garden City, New York 11530, (516) 683-1234; Sungchan Cho, Esq., attorney for Respondent, 3571 162nd Street, Flushing, New York 11358, (718) 321-2577.
Scott Fairgrieve, J.

Hearing Background

The Petitioner Daniel Milazzo commenced a squatter holdover summary proceeding against Respondent Kyung-Ah Kim concerning 30 Schoharie Court, Jericho, New York. This proceeding was commenced in April of 2018.

The Petition, dated April 9, 2018, states that Petitioner is the owner of the premises. Respondent Kyung-Ah Kim is described as being in possession without permission and has no right of possession. Attached to the Petition is the Affidavit of Service regarding the service of the Notice to Quit. The Affidavit of Service states that Michael Masone served the Notice to Quit upon Respondent Kyung-Ah Kim on Friday, March 23, 2018. Kyung-Ah Kim is described as a male, Asian/White, black hair, approximate age 50, approximate weight 180, approximate height 5'9".

Michael Masone allegedly served the Notice of Petition and Petition upon Respondent Kyung-Ah Kim on Saturday, April 28, 2018 at 9:15 a.m. at 30 Schoharie Court, Jericho, New York. Respondent Kyung-Ah Kim is described as a male, Asian/White, black hair, and approximate 50 years old, 180 pounds and 5'9".

On May 4, 2018, Hon. James Darcy granted a default judgment of possession with no stay of the warrant against Respondent Kyung-Ah Kim. On May 24, 2018, Respondent Kyung-Ah Kim and her husband Songyol Kim were evicted by the Sheriff of Nassau County. On or about May 25, 2018, Respondent Kyung-Ah Kim moved via order to show cause to vacate the default, and to be restored to possession, based upon improper service of the Notice of Petition and Petition on the grounds that she is a "female, much less than 180 pounds, and 5'2". Judge Darcy granted a Traverse hearing by his order, dated June 21, 2018.

Respondent Kyung-Ah Kim lost ownership of the said premises due to foreclosure of the mortgage because she owed $579,845.04 to the Bank of New York Mellon.

Testimony of Petitioner at Traverse Hearing

Petitioner testified at the Traverse hearing that he became the new owner of the premises due to the foreclosure in March of 2018. About 5 - 7 days after the auction, Petitioner went to the said premises and knocked on the door. A male answered the door. Petitioner asked him if he was Kyung-Ah Kim. The male replied in the affirmative as follows:

"He said, 'yeah, yeah, yeah', three times."

Thereafter, Petitioner informed him that he had purchased the premises at the foreclosure sale. Petitioner tried to make a deal about having the occupants move, but was told to speak to their lawyer.

Petitioner gave the following testimony concerning the presence of Respondent Kyung-Ah Kim when the male represented himself as being Respondent Kyung-Ah Kim:

"Q. When he identified himself as the owner of the house, was it inside of the house or outside of the house?A. He was right at the front door standing inside the house. Right at the door still.Q. And the wife was there when he identified himself?A. She was up the stairs looking down.Q. And he identified himself as her?A. Yes. I said are you Kyung-Ah Kim? And he knew that I — wasn't —Q. Go ahead.A. He knew that I wasn't there to, you know, he knew I was there on business.Q. I just want to know, was the wife in the vicinity when he identified himself?A. Yes.Q. Okay.A. Yes. It's a high ranch, so they have the few stairs, and she was standing in the living room.Q. Okay, I got it. Thank you."

Testimony of Process Server Michael Masone

The process server Michael Masone testified at the Traverse hearing. Mr. Masone stated that he served the Notice of Petition and Petition on Saturday, April 28, 2018 at 9:15 a.m. at 30 Schoharie Court, Jericho, New York. He served the papers on an Asian male who claimed to be Kyung-Ah Kim. At the time of service, there was a white Mercedes SUV and white Toyota in the driveway. However, he didn't see any other people in the house.

Mr. Masone performed the service of the papers because he is a friend of the Petitioner. Mr. Masone does not serve papers for a living and owns a masonry company.

Michael Masone was not given any information on whether Respondent was a male or female. Michael Masone confirmed the identity of the person served as Songyol Kim who was present in court:

"Q. So, on that day when you served the notice of petition and petition, was that the first time you had been to the house?A. No.Q. Had you been to the house once before?A. Yes.Q. When was that?A. I was a month earlier, March 23.Q. Okay. And on that date what happened?A. I served a notice to quit.Q. Okay. And who did you serve the notice to quit on?A. The same gentleman.Q. Okay. When you knocked on the door that time and asked for Kyung-Ah Kim did that gentleman answer and tell you that he was Kyung-Ah Kim?A. Yes, sir.Q. Okay. Is that person who you served in the courtroom today?A. Yes, he is.Q. Can you point him out to the Judge?A. Right behind you."

On cross examination, Michael Masone stated that Songyol Kim had black and grey hair.

Testimony of Kyung-Ah Kim

Respondent Kyung-Ah Kim testified that she was not served on April 28, 2018. Respondent Kyung-Ah Kim was at work on April 28, 2018. She also denies that a male fitting the following description was home on April 28, 2018: Asian/white, black hair, 50 years old, 180 pounds and approximately 5'9".

Testimony of Songyol Kim

Mr. Kim denied being served on April 28, 2018 at 9:15 a.m. Mr. Kim stated he was already at work at 7:50 a.m. He is the western regional manager for H-Mart, a supermarket. Mr. Kim spoke with Mr. Milazzo when he came to the house. Mr. Kim was informed by Mr. Milazzo that he purchased the house at auction. Mr. Kim testified that he "didn't tell anything about my name or whatsoever." Mr. Kim obtained Mr. Milazzo's card and told him that his attorney would call him.

Decision

This court concludes that Respondent Kyung-Ah Kim is estopped from claiming that service upon her husband Songyol Kim is improper service for the reasons set forth herein.

"In general, representations made by an individual who accepts the service of process are not binding on the defendant in the absence of proof that the defendant himself knew of such representations." Broman v. Stern, 172 AD2d 475, 476, 567 N.Y.S.2d 829 (2d Dept 1991). The Petitioner is required to show that the Respondent "was to some extent aware of the alleged misrepresentation." Caudle v. Adler, 146 AD2d 598, 599, 536 N.Y.S.2d 522 (2d Dept 1989).

In Phi Sigma Phi Sorority, Inc. v. Simons, the process server claimed that he served the defendant's roommate after she represented herself to be the defendant who was not home at the time of service. 137 AD2d 873, 873, 524 N.Y.S.2d 553 (3d Dept 1988). The roommate denied the misrepresentation. Phi Sigma Phi Sorority, Inc., 137 AD2d at 874. The Court accepted the roommate's version of the story and determined service was defective because there was no evidence the defendant was aware of or responsible for her roommate's conduct. The Court chose to credit the roommate's version of what transpired because "this was a singular event for the roommate, and not so for the process server who performed this task about 100 times a week."

In Caudle, the defendant's father was served when he identified himself as "Dr. Adler." Caudle, 146 AD2d at 598. The process server testified that the defendant's father identified himself as "Jeffrey Adler," the defendant, rather than just "Dr. Adler." The defendant and his father had the same last name, were both doctors, and shared an office; however the defendant was not present at the time of service. Caudle, 146 AD2d at 598. The Court credited the father's version of the story and found there was insufficient evidence to warrant that the defendant knew of or participated in such misrepresentation. Id. at 599.

In Atlantic Northeast Dist. Church of Brethan v. First Haitian Church of Brethen, 3 Misc 2d 1101(A), 787 N.Y.S.2d 675 (Table), 2004 WL 914635 (Civ Ct, Kings County, 2004), the Court set forth the standard to be used to excuse the strict requirement of delivery to the person to be served.

"There is only one recognized exception to the strict requirement of delivery to the person to be served. This exception applies when the person to be served is himself clearly attempting to resist or evade service, which may occur by misrepresentations as to identity or some affirmative act which evidences a deliberate attempt to resist. Professional Billing Resources, Inc. v. Haddad, 183 Misc 2d 829, 705 N.Y.S.2d 204 (New York County 2004). However, in the instant case it was not Reverend Montauban who misrepresented his identify, but the deacon. At the time of service of the predicate notice. Reverend Montauban was not at the premises nor in the vicinity of the deacon and the process server. Consequently, service on the deacon could only qualify as substituted service on Reverend Montauban, which requires a follow-up mailing."

Unlike Phi Sigma Phi, Inc., Caudle and Atlantic, the Respondent was present when Songyol Kim misrepresented himself to be Kyung-Ah Kim while talking to the Petitioner. This evidence allows the court to assume that the Respondent was aware of and participated in these misrepresentations despite the fact that she was not present for the misrepresentation to Michael Masone. Since Respondent did not object when Songyol Kim represented himself as Kyung-Ah [*2]Kim to Petitioner, Respondent essentially consented to and allowed the misrepresentations to Michael Masone.

These were singular events for both the Petitioner and Masone, neither of which are employed as a process server. This was a determining factor of the Court in Phi Sigma Phi, Inc. in determining which story to credit and, consequently, whether or not to sustain service.

As a result, the current decision to rely on the Petitioner and Michael Masone's version of what transpired depends on credibility and consistency. The Petitioner and process server, Michael Masone, testified to almost identical interactions with Songyol Kim. Songyol Kim and Respondent did not submit any evidence to support the claim that they were at work at the time Michael Masone served the Notice of Petition and Petition on April 28, 2018. Additionally, Respondent did not testify against or deny Petitioner's testimony that she was present for the misrepresentation.

Based on the testimony of Petitioner and Michael Masone, this court believes Respondent was aware that her husband misrepresented himself as Kyung-Ah Kim. Respondent was present when he did so to Petitioner and did not refute the misrepresentation. Now, Respondent is attempting to use the misrepresentation that occurred on April 28, 2018 to her advantage to vacate the order of eviction. This is exactly what the law aims to prevent.

Lastly, even if this court were to invalidate service, this court would be unable to restore possession to Respondents because of the extensive testimony of Town of Oyster Bay, Department of Planning and Development Inspector James Baudille, concerning the conditions of said premises.

Petitioner has met the burden of proving Respondent was aware of and participated in her husband's misrepresentations as Kyung-Ah Kim. Service is sustained and personal jurisdiction was properly obtained over the Respondent.

Conclusion

This court sustains service upon the Respondent Kyung-Ah Kim for the reasons set forth herein. The court declines to restore Respondent to possession of the premises. The eviction was proper.

So Ordered:

Dated: September 13, 2018

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE