S & S Enters. Realty, Inc. v Stevenson
Annotate this CaseDecided on March 19, 2018
City Court of Mount Vernon
S & S Enterprises Realty, Inc., Petitioner,
against
Edward Stevenson, Respondent.
3406-17
Morton Kaner, Esq.
Novick & Kaner, P.C.
Attorney for Petitioner
56 Harrison Street
New Rochelle, New York 10461
Fitzmore Harris, Esq.
Attorney for Respondent
2546 East Tremont Avenue, 2nd Floor
Bronx, New York 10461
Adam Seiden, J.
Petitioner commenced this nonpayment proceeding in December 2017 seeking arrears in the amount of $3,200.00. On January 3, 2018, the parties appeared with their attorneys. A final judgment of possession was issued with no further stay and respondent advised that he had surrendered possession. The matter was adjourned to February 6, 2018 to resolve the monetary portion, if any, due to the petitioner. On February 6, 2018, the parties appeared and advised the court that they had not been able to come to an agreement on the amount due to petitioner. Respondent represented that he wanted to use his security deposit to pay the balance due and petitioner stated that the security deposit would have to be used to repair and restore the premises. Respondent also filed an Answer on February 6, 2018. The matter was adjourned to February 22, 2018 for a nonjury trial.
On February 16, 2018, respondent filed a motion to dismiss, with a return date of [*2]February 22, 2018 at 9:30am. Respondent failed to appear at the calendar call. However, petitioner appeared and filed an Affirmation in Opposition to the motion.
In support of the motion to dismiss respondent argues that the court lacks personal jurisdiction. Respondent Stevenson affirms that he was never served with the petition and notice of petition, nor a "Notice to Quit". Per the affidavit of service filed with the Court, the process server served respondent by delivering a copy of the notice of petition and petition to a person of suitable age and discretion. The affidavit provides that on December 8, 2017 at 10:40am, the process server served "John Doe" at 13 East 2nd Street, Mount Vernon, New York. "John Doe" is described as a black male with black hair, approximately 30 years old, 5' 6", weighing 160 lbs. Respondent states that 13 East 2nd Street is not and was never the property sought to be recovered and is a separate business establishment. He states that on the date and time of the alleged service, he nor anyone else would have been present at 9.5 East 2nd Street because the store does not open until 11:00am. Respondent states that he became aware of these proceedings after his nephew who works in the store at 13 East 2nd Street informed him that one morning while the store at 9.5 East 2nd Street was closed, a gentleman had come into his store where he was working and placed an envelope on the counter and left. Accordingly, respondent now argues that the petition must be dismissed for lack of personal jurisdiciton.
In opposition to the motion, petitioner's counsel, Morton Kaner, affirms that 9.5 East 2nd Street was closed when the process server attempted service. He maintains that the process server then entered 13 East 2nd Street, in the same building, and was advised by an employee that said store front was also a place of business rented by the respondent. Accordingly, the process server left the papers with another employee. Counsel argues that respondent has not denied receipt of papers from the employee served or by mail.
The Court finds that the respondent has waived his personal jurisdiction claims. Respondent made three appearances in this court (two with counsel), prior to submitting the instant motion. On December 18, 2017, the return date of the petition, respondent's friend George Waller appeared on respondent's behalf. The matter was adjourned for the respondent to appear with an attorney. On January 3, 2018 respondent, represented by current counsel, surrendered possession of the premises and a final judgment of possession with no stay was issued by the court. The matter was adjourned until February 6, 2018 for control with the understanding that the parties would try to resolve the issue of the two months rent claimed by petitioner. On February 6, 2018, respondent, represented by counsel, advised that court that the parties had not been able to reach a settlement on the payment due. The parties requested to go to trial to determine the monetary amount, if any, due to petitioner since petitioner would not allow the respondent to use his security deposit towards the amount due petitioner.
The law provides that a party my waive a personal jurisdiction claim when he appears in an action and participates in the lawsuit on the merits without first raising a personal jurisdiction claim in an answer or pre-answer motion to dismiss (Tavares v City of New York, 108 AD3d 614, 617 (2d Dept. 2013)). Respondent's appearance on January 3, 2018 clearly demonstrated a participation on the merits. He did not raise a personal jurisdiction defense on that appearance date. Furthermore, when the parties appeared in court on February 6, 2018, respondent's counsel did not move to vacate the judgment of possession or move to dismiss the action for lack of personal jurisdiction. Instead counsel advised the Court that the parties had been unable to reach [*3]an agreement and the matter was set for a nonjury trial. The Court finds that all these actions by respondent "collectively evidenced [his] 'participat[ion] in the lawsuit on [the] merits' and [his] 'intention to submit to the court's jurisdiction over the action'". (Washington v Palanzo, 192 Misc 2d 577 (2d Dept. 2002) (citing Rose Ocko Found v Lebovits, 259 AD2d 685, 690 [internal quotation marks omitted]; Rubino v City of New York, 145 Ad2d 285, 288)).
Motion to dismiss denied. The parties are directed to appear for trial on March 29, 2018 at 2:00pm.
The Court considered the following papers on the motion: Notice of Motion, dated February 13, 2016; Affirmation in Support; Stevenson Affidavit in Support; Exh. A-C. Affirmation in Opposition, dated February 21, 2018. Reply Affirmation in Support, dated, February 22, 2018.
This constitutes the Decision and Order of the Court.
Dated: March 19, 2018
Mount Vernon, New York
HON. ADAM SEIDEN
Associate City Judge of Mount Vernon
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