Recitation, as required by the CPLR §2219(a), of the papers considered in the review of this motion to dismiss and for summary judgment. PAPERS NUMBERED Notice of Motion & Affidavits Annexed 1 Order to Show Cause & Affidavits Annexed Answering Affidavits 2 Replying Affidavits Exhibits Memorandum of law DECISION/ ORDER Upon the foregoing cited papers, the decision and order of this motion is as follows: In this holdover proceeding, JP 603 Linden Boulevard, LLC (“Petitioner”) seeks to recover possession of 603 Linden Boulevard, Basement, Brooklyn, New York 11203 (“Premises”) from Lionel Whiteman and Greta Whiteman (collectively “Respondents”) on the grounds that Respondents’ weekly tenancy expired upon the service of the Notice of Termination. This proceeding first appeared on the court’s calendar on July 30, 2019 and was adjourned August 27, 2019 at Respondents’ request to retain counsel. On the return date, CAMBA Legal Services, Inc. appeared for Respondents and served an Answer which interposed four (4) affirmative defenses and two (2) counterclaims. The proceeding was then adjourned to October 9, 2019 by two-attorney stipulation for motion practice. Respondents now move to dismiss on various grounds including that the Notice of Termination was not properly served. Respondents assert the predicate notice was served by a party to the proceeding which renders service facially defective. Petitioner opposes this branch of the motion and avers that a landlord or its agent may serve a notice terminating the tenancy. Real Property Law §232-a requires service of a thirty (30) day notice terminating a month-to-month tenancy in the same manner as a notice of petition and petition in a summary proceeding. Civil Practice Rules and Law §2103(a) explicitly states pleadings cannot be served by any person who is a party to the proceeding. Petitioner argues that since a predicate notice is not pleading CPLR §210 (a) does not apply because “the proceeding predicated thereon was not a pending action.” (See 4 of Affirmation in Opposition). This issue was previously considered in Zamar v. Fair, 153 Misc.2d 913 (Civ. Ct., Bx. Co. 1991). In that summary holdover proceeding the Housing Court interpreted the service requirement of CPLR §2103 (a), read the statute in para materia with RPL §232-a, and extended the requirement to apply to the service of predicate notices. This court agrees with the Zamar v. Fair court. The public policy behind extending CPLR §2103 (a) to service of a notice of termination pursuant to RPL §232-a is that an individual who has an interest in the outcome of a summary proceeding should not be permitted to also effectuate service. If a hearing on the propriety of service is required, there is a risk that testimony on service of a predicate notice by a party who has an interest in the outcome of the controversy may be tainted. “[S]ervice of a termination notice can be the subject of a traverse hearing. CPLR 2103(a)’s requirement that paper be served by a non-party helps assure that traverse hearings are properly and correctly decided.” Zamar v. Fair, supra. The prudent practice, particularly in summary proceedings where the landlord has a direct interest in the outcome of the proceeding, is to require an individual, non-party of unassailable character to do the serving and complete the affidavit of service. Petitioner here is a limited liability corporation (LLC). Joyce Prince, is the owner of Petitioner LLC, is the individual who served the notice of termination. Petitioner cannot seek to hide behind the corporate veil of the LLC as an exception to CPLR §2103(a) and RPL §232-a as Joyce Prince has a direct interest in the outcome of this proceeding. Accordingly, Respondents’ motion is granted. The Petition is dismissed without prejudice. As the court has granted Respondent’s motion to dismiss on procedural grounds, the remaining branches of the motion are deemed moot. This constitutes the decision and order of the court. Dated: November 1, 2019 Brooklyn, New York
