Kuper v. Bravo

Recitation, as required by CPLR 2219(a)Notice of Motion and Affidavits Annexed       1Order to Show Cause and Affidavits Annexed               0Answering Affidavits         2Replying Affidavits            3Exhibits  4Stipulations 5Other  0DECISION AND ORDER Petitioner Lucyna Kuper commenced this owner’s use holdover proceeding against Victor Bravo and Miriam Bravo (Respondents) seeking to recover possession of Apartment 3F located at 47-20 48th Street, Woodside, New York 11377 (premises). Both parties are represented by counsel. Respondent Victor Bravo’s Answer raises lack of personal jurisdiction as an affirmative defense, alleging that Petitioner did not personally serve him with the Notice of Non-Renewal of Lease and Notice to Vacate (Golub notice) in the manner described in the affidavit of service. In accordance with the Decision/Order of the Hon. John S. Lansden, dated June 14, 2018, which granted Respondent’s motion to file Victor Bravo’s Answer and denied Petitioner’s cross-motion to strike the affirmative defense alleging lack of personal jurisdiction, this Court held a traverse hearing, which lasted over the course of two days.At issue is service of a Notice of Non-Renewal of Lease and Notice to Vacate (Golub notice) pursuant to Rent Stabilization Code (RSC) §2524.4(a), which provides that an owner may opt to decline to renew a rent-stabilized tenant’s lease if the owner’s immediate family will take possession of the premises and make it their primary residence. Proper service of this notice, which is commonly referred to as a “Golub notice,” is a prerequisite to commencing a holdover proceeding based on owner occupancy. RSC §2524.2(a); (Golub v. Frank, 65 N.Y.2d 900 [1985]).RSC §2524.2(c)(3) requires that service of a Golub notice pursuant to RSC §2524.4(a) take place at least 90 days and not more than 150 days prior to the expiration date of the lease. RSC §2524.2(c)(3) does not specify how the Golub notice must be served, but case law provides that the method of service for a notice of intent not to renew should mirror RSC §2523.5 (Notice for renewal of lease and renewal procedure), which allows service of renewal notices by “mail or personal delivery.” (See, Shimko v. Chao, 28 Misc.3d 1212(A) [Civ. Ct., NY County 2010]; Trojan v. Wisniewska, 8 Misc.3d 382 [Civ. Ct., Kings County 2005]; 1691 Fulton Ave. Assoc., LP v. Watson, 55 Misc.3d 1221(A) [Civ. Ct., Bronx County 2017]).Petitioner alleges that the Golub notice was personally served on Respondent Victor Bravo at the premises on March 10, 2017, in the manner detailed in the Affidavit of Personal Service (P. Ex. 3). Petitioner does not allege that the Golub notice was mailed to Respondent Victor Bravo and relies solely on the alleged personal service. Respondent Victor Bravo alleges that he was not personally served with the Golub notice and that this Court does not have personal jurisdiction.At the traverse hearing, Petitioner called Javon Jean, process server, to testify. Mr. Jean testified that on the morning of March 10, 2017, he planned out his route for the day, and once he got to the subject premises, he rang a few door bells to get into the subject building. After Mr. Jean refreshed his recollection regarding the location of the subject premises using his log book, he testified that he proceeded to the third floor of the subject building. Mr. Jean testified that he remembered that the door to the subject premises was brown and that he knocked once and did not get a response. Approximately five or six minutes later, Mr. Jean knocked on the door again, and this time someone opened the door. Mr. Jean testified as follows regarding his interaction at the front door to the premises:“I then got an answer from someone and I served the papers to Victor Bravo. I asked if he was Victor Bravo, he acknowledged it, and said ‘yeah,’ and took the papers.”When asked whether he recognized Victor Bravo sitting in the courtroom, Mr. Jean testified as follows:Petitioner’s attorney: “Do you recognized the gentlemen that you served the papers to here in the courtroom today?”Process Server: “No, I do not.”The Court notes that while Mr. Jean was testifying, Respondent Victor Bravo was sitting in the courtroom at the counsel table with his attorney. When provided the opportunity, Mr. Jean did not identify Respondent Victor Bravo as the person served.Next, Respondents called Victor Quiridumby as a witness. Mr. Quiridumby testified that he and Victor Bravo have worked together at Max Electrical for approximately 5 years. Mr. Quiridumby testified that he and Victor Bravo went to work together on the morning of March 10, 2017, and that they had already reported to their Astoria office by the time Victor Bravo was allegedly served with the Golub notice.Lastly, Respondent Victor Bravo testified. Mr. Bravo credibly testified that he was at work on March 10, 2017 at the time the Golub notice was allegedly served. Mr. Bravo also testified that he was the only adult male living in the subject premises at the time the Golub notice was allegedly served. Mr. Bravo testified that the affidavit of service for the Golub notice does not accurately describe his physical appearance because his weight is around 190 pounds and his skin color is “coffee,” as opposed to the description in the affidavit of service, which lists the recipient’s weight as between 130 pounds and 159 pounds and the skin color as white.“Ordinarily, a process server’s affidavit of service establishes a prima facie case as to the method of service and therefore, gives rise to a presumption of proper service.” (Wells Fargo Bank N.A. v. Chaplin, 65 A.D.3d 588, 589 [2nd Dep't. 2009]; see also, Bankers Trust Co. of Cal. v. Tsoukasa, 303 A.D.2d 343, 344 [2nd Dep't. 2003]). “However, when a [party] submits a sworn denial of receipt containing specific facts to refute the statements in the affidavit of the process server, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of evidence at a hearing.” (U.S. Bank, N.A. v. Peralta, 142 A.D.3d 988, 989 [2nd Dep't. 2016]; see also, Citibank N.A. v. Balsamo, 144 A.D.3d 964 [2nd Dep't. 2016]).The Court of Appeals adheres to a strict compliance standard for personal service on the person to be served. (Dorfman v. Leidner, 76 N.Y.2d 956 [1990]; see also, Macchia v. Russo, 67 N.Y.2d 592 [1986]; Espy v. Giorlando, 56 N.Y.2d 640 [1982]).¹ “Service of process is carefully prescribed by the Legislature, which affords litigants ample methods for serving natural persons.” (Dorfman v. Leidner, 76 N.Y.2d 956, 958 [1990]). The meaning of personal service on the person to be served is “clear and unambiguous.” (Espy v. Giorlando, 56 N.Y.2d 640, 642 [1982]). Personal service on the person to be served should be construed “in accordance with its plain and literal language” and courts should avoid “judicially engrafted exceptions.” (Dorfman v. Leidner, 76 N.Y.2d 956, 958 [1990]).The strict compliance standard for personal service on the person to be served has resulted in the dismissal of a variety of cases for lack of personal jurisdiction, such as when a process server is acting in good faith to try to effectuate personal service and there is “an express or implied misrepresentation of specific authority” to accept service. (Dorfman v. Leidner, 76 N.Y.2d 956, 958 [1990] (case dismissed when employee informed process server that doctor would not meet process server in the waiting room and that “under such circumstances” the employee was authorized to accept service); see also, Espy v. Giorlando, 56 N.Y.2d 640 [1982] (case dismissed when nurse told process server she was authorized to accept service for doctor); Macchia v. Russo, 67 N.Y.2d 592 [1986] (case dismissed when process server delivers summons to respondent’s son who then went inside and gave it to respondent)).The strict compliance standard for personal service can even result in dismissal when a person misrepresents their identity to the process server. “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 A.D.2d 475, 476 [2nd Dep't. 1991]). In Professional Billing Resources, Inc. v. Haddad, a process server went to a medical office to personally serve Dr. Heskel M. Haddad, and at the medical office, the process server served a person who claimed to be “Dr. Haddad.” (Professional Billing Resources, Inc. v. Haddad, 183 Misc.2d 829 [Civ. Ct., NY County 2000]). In actuality, the person served was not Dr. Haddad, but instead was an employee who made a misrepresentation to the process server concerning their identify. The misrepresentation in Professional Billing Resources, Inc. goes one step further than misrepresenting authority to accept service. “The process server acting upon a misrepresentation as to actual identify, on the other hand, is unaware that he is not delivering the summons to the ‘person to be served.’ On the contrary, the process server presumably believes that he is delivering the summons to the person to be served, and thus his mistake is in understandably misapprehending the facts.” (Id. at 833.) Even under this fact pattern, the strict compliance standard for personal service controls and the Court dismissed the proceeding for lack of personal jurisdiction. The alleged misrepresentation of identity to the process server alone was insufficient to warrant an exception to the strict compliance standard for personal service “since plaintiff does not allege that defendant was present when the misrepresentations were made or when the summons was delivered to the wrong person. Nor does plaintiff submit any other evidence to demonstrate that defendant knew of the misrepresentation.” (Id. at 834.)Although this is a relatively rare fact pattern, Courts have rendered similar conclusions when confronted with similar circumstances in which a person misrepresents who they are to a process server. (See, Atlantic Northeast Dist. Church of Brethren v. First Haitian Church of Brethren of New York, 3 Misc. 3d 1101(A) [Civ. Ct., Kings County 2004] (In a commercial holdover proceeding, personal service of a predicate notice pursuant to RPAPL §735 was found to be insufficient when a deacon misrepresented his identity to a process server and pretended to be Reverend Montauban. “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 substitute service on Reverend Montauban, which requires a follow-up mailing” and the proceeding was dismissed as to the Reverend); (see also, Caudle v. Adler, 146 A.D.2d 598 [2nd Dep't 1989] (Even assuming that Merwin Adler misleadingly identified himself as Jeffrey Adler to the process server, the proceeding is dismissed because there is insufficient evidence to show that Jeffrey Adler was aware of the alleged misrepresentation or that he sought to evade service)).The strict compliance standard for personal service is enforced with very limited exceptions. “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 identify or some affirmative act which evidences a deliberate attempt to resist service.” (Atlantic Northeast Dist. Church of Brethren v. First Haitian Church of Brethren of New York, 3 Misc. 3d 1101(A) [Civ. Ct., Kings County 2004]; citing, Professional Billing Resources, Inc. v. Haddad, 183 Misc.2d 829 [Housing Ct., Civ. Ct., N.Y. County 2000]). The burden is on petitioner to show that respondent was to some extent aware of the misrepresentation, such that respondent knew of or participated in such misrepresentation to evade service. (Caudle v. Adler, 146 A.D.2d 598 [2nd Dep't 1989]; citing, Phi Sigma Phi Sorority, Inc. v. Simons, 137 A.D.2d 873 [3rd Dep't 1988]; also citing, Bossuk v. Steinberg, 58 N.Y.2d 916 [1983]).By way of comparison, one instance in which a Court did find an exception to the strict compliance standard for personal service is in Milazzo v. Kyung-Ah Kim, in which the person to be served was physically present, standing at the stairs while her husband answered the door and misrepresented his identity to petitioner, pretending to be his wife. (Milazzo v. Kyung-Ah Kim, 61 Misc.3d 570 [Dist. Ct., Nassau County 2018]). The salient fact for the Court was that respondent was physically present when her husband misrepresented his identity to petitioner, so the Court determined that respondent was aware of and participated in the misrepresentation of identity. (Id. at 575-576.)In the case at bar, Petitioner alleges the Golub notice was personally served on Victor Bravo. Petitioner relies solely on the alleged personal service to establish personal jurisdiction. However, is clear to the Court that the Golub notice was not served personally on Respondent Victor Bravo. The salient fact is that Petitioner’s process server conceded that he did not serve Respondent Victor Bravo. Petitioner’s process server impeached his own affidavit of service when he acknowledged that Respondent Victor Bravo was not the person served on March 10, 2017.² In fact, when Petitioner’s process server was asked whether he “recognized the gentleman that you served the papers to in the courtroom today,” Mr. Jean testified “No, I do not,” while Respondent Victor Bravo sat in the courtroom at the counsel table with his attorney. At no time during the hearing did Petitioner’s process server identify Respondent Victor Bravo sitting in the courtroom as the person that he served. Furthermore, Respondent Victor Bravo credibly testified that that he was at work on March 10, 2017 at the time the Golub notice was allegedly served. Respondent’s sworn denial of receipt combined with the process server’s own testimony rebutted the presumption of proper service. As such, Petitioner did not establish personal jurisdiction by a preponderance of the evidence at the hearing. In addition, Petitioner failed to establish an exception to the strict compliance standard for personal service on the person to be served. Petitioner failed to establish any evidence to demonstrate that Respondent Victor Bravo engaged in or orchestrated any misrepresentation to the process server or that Respondent Victor Bravo deliberately sought to evade service of the Golub notice. Therefore, traverse is sustained, and the proceeding is dismissed without prejudice as this Court does not have personal jurisdiction over Respondent Victor Bravo.This constitutes the Decision/Order of the Court.Dated: February 28, 2019Queens, New York