Town of Huntington v CFLNYNY, LLC

[*1] Town of Huntington v CFLNYNY, LLC 2021 NY Slip Op 50009(U) Decided on January 7, 2021 District Court Of Suffolk County, Third District Hackeling, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 7, 2021
District Court of Suffolk County, Third District

Town of Huntington, Plaintiff

against

CFLNYNY, LLC, Defendant.



CR-380-19/HU



Laurie Gatto-Argiriou

Assistant Town Attorney

Town of Huntington

Attorney for the Plaintiff

100 Main Street

Huntington, New York 11743

John G. Poli, III, P.C.

Attorney for Defendant

51 Burr Road

East Northport, New York 11731
C. Stephen Hackeling, J.

Upon the following papers numbered 1-2

Read on this motion by defendant

Notice of Motion and supporting papers 1

Affirmation in opposition and supporting papers2

The Town of Huntington (hereafter "the Town") commenced the above captioned criminal action via six (6) informations dated May 10, 2019 asserting that the defendant corporation violated Sec's. 87-25(A) twice and Sec.'s 160-22(A); 198-120(A); 124-50(A-B-C); 124-47(A) of the Huntington Town Code. The charges consist of the Town's assertion that the defendant did not have certificates of occupancy or permitted uses for a two family residence located at 9 Brightside Ave., East Northport, New York, amongst other violations.

By application dated January 8, 2020, the defendant moves to dismiss the Town's accusatory instruments. The defendant argues that the Town never obtained personal jurisdiction over the defendant corporation as it never received a copy of the accusatory instruments from the Secretary of State and that said criminal informations are invalid as the observations of the Town's inspector are suppressible as they were obtained via an illegal, warrantless search. The Town responds asserting it obtained personal jurisdiction over the corporation via service upon the Secretary of State, pursuant to NY CPLR Sec. 311(a) and NY BCL Sec. 306(b)(i).

The New York Business Corporation Law provides:

Service of process on the Secretary of State as agent of a domestic or authorized foreign corporation shall be made by personally delivering to and leaving with the Secretary of State or a deputy, or with any person authorized by the Secretary of State to receive such service, at the office of the Department of State in the city of Albany, duplicate copies of such process together with the statutory fee, which fee shall be a taxable disbursement. Service of process on such corporation shall be complete when the Secretary of State is so served. Emphasis added.

The express language of the statute states that service of process is complete upon receipt by the Secretary of State. Jurisdiction is obtained by service upon the Secretary of State, irrespective of whether process ever reached the defendant. Thas v. Dayrich Trading, Inc. 78 AD3d 1163 (N.Y.AD2d Dept. 2010). Shanker v. 119 E. 30th LTD, 63 AD3d 553 (N.Y.A.D. 1st Dept. 2009). The Court also notes that the defendant waived any personal jurisdiction defense when it was arraigned and pleaded "not guilty" on October 16, 2019. See generally, The People of the State of New York v. Grant, 16 NY2d 722 (NY 1965); People of the State of New York v. Zappula, 42 Misc 3d 254 (Civ. Ct. Manhattan 2013).

The defendant's Fourth Amendment illegal search without a warrant argument is also not persuasive The Town also asserts that a search warrant was not required as the defendant's [*2]tenants consented to the two searches and signed consent forms authorizing same. The defendant does not dispute the Town's assertion that the tenants at the subject premises consented to the two searches and signed forms acknowledging same. Absentee landlords lack an expectation of privacy in premises leased to a tenant; and accordingly have no standing to assert a violation of the Fourth Amendment. Tarantino v. City of Hornell, 615 F. Supp. 2d 102 (U.S.D. New York 2009); See also gen., Illinois v. Rodriguez, 110 Sp. Ct. 2793 (U.S. 1990).

Accordingly, the defendant's application to dismiss is denied in all respects.

_________________________________

Hon. C. Stephen Hackeling, J.D.C.

Dated: January 7, 2021