Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Respondent Vernisa Depass’s motion to dismiss: Papers Numbered Notice of Motion, Affirmation, Affidavit, Exhibits A-R 1, 2, 3, 4-21 Respondent’s Memorandum of Law 22 Affirmation, Affidavit, Exhibits A-F in Opposition 23, 24, 25-30 Affirmation and Exhibits AA-CC in Reply 31, 32-34 Upon the foregoing papers, the Decision and Order on this Motion is as follows: BACKGROUND & PROCEDURAL HISTORY Petitioner brought this eviction proceeding against the occupants of Apartment 2B at 2116 Crotona Parkway, Bronx, New York, claiming that respondent-occupant Vernisa Depass is a licensee whose license was terminated upon the death of the Rent Stabilized tenant of record, Dorothy Depass.1 Respondent asserts that she is the daughter of Dorothy Depass and that she has the right to succeed to her mother’s tenancy as she resided in the apartment with her mother continuously from at least March 2018 through the date of her mother’s death in August 2019. The Notice of Petition and Petition, dated December 13, 2019, are predicated upon a “10 Day Notice to Vacate Premises” dated November 25, 2019 and the case first appeared on the court’s calendar on January 13, 2020. Respondent defaulted that day and the case was adjourned to February 14, 2020 for inquest. Respondent appeared at the inquest and the case was adjourned for respondent to seek counsel. Respondent retained counsel and the case was adjourned to March 20 for all purposes. The appearance on March 20 did not take place due to the COVID-19 pandemic and concomitant shut-down of all in-court operations except for essential matters. On July 17, 2020 the parties appeared by their respective counsel at a video conference scheduled by the court. At that conference, the case was adjourned to September 2, 2020 with a briefing schedule for a motion to be filed by respondent. The court heard argument on September 2 and marked the motion submitted, decision reserved. RESPONDENT’S MOTION TO DISMISS AND FOR OTHER RELIEF Now before the court is respondent’s motion, seeking dismissal on two grounds: under CPLR Rule 3211(a)(7) and RPAPL §§713(7) and 735, for failure to state a cause of action due to alleged defective service of the requisite 10-day predicate notice; and/or under CPLR Rule 3211(a)(8) and RPAPL §735, for lack of personal jurisdiction due to alleged defective service of the Notice of Petition and Petition. While respondent argues that the petition should be dismissed on the papers, in the alternative, respondent seeks a hearing on the alleged defective service of the predicate notice, Notice of Petition and Petition. Respondent also seeks leave to serve and file an answer under CPLR §3012(d) and appointment of a guardian ad litem under CPLR §§1201-1202. A proposed Answer is attached to the motion papers as Exhibit Q. The affidavits of service filed with the court of both the predicate notice and the Notice of Petition and Petition assert that the papers were all served by affixing a copy to a conspicuous part of the entrance door of respondent’s apartment after two attempts at personal service, followed by first-class and certified mailings of additional copies of each document. Petitioner’s process server alleges service by affixing and mailing took place on November 27, 2019 for the predicate notice and December 31, 2019 for the Notice of Petition and Petition. Respondent in her sworn affidavit supporting the motion denies receipt of any copies of the papers in this proceeding and further asserts that they could not have been properly served on her because in October 2019 petitioner changed the mailbox lock and did not provide her with a copy of the key. Respondent alleges that she repeatedly raised the issue of her need for a copy of the new mailbox key during a prior illegal lockout proceeding, L & T Index # 807461/19. In that matter, in which respondent appeared pro se, on October 17, 2019 the court ordered respondent to be restored to possession after an inquest and petitioner did in fact restore her to possession immediately. Petitioner’s subsequent motion to vacate that order was settled on November 21, 2019 in an agreement which granted petitioner a final judgment of possession, with execution of the warrant stayed through February 7, 2020. Respondent attaches to her motion papers, inter alia, a copy of the transcript of the November 21, 2019 court proceedings (Exhibit J) and alleges that despite her numerous requests for a copy of the mailbox key, reflected in that transcript, petitioner did not give her one until April 7, 2020, long after petitioner allegedly served the papers in this eviction proceeding. Petitioner opposes respondent’s motion with its attorney’s affirmation and an affidavit of its superintendent Martin Tavaras, sworn to on August 19, 2020, which asserts, inter alia, that he lives next door to the subject premises and that to his knowledge the tenant of record Dorothy Depass had lived there alone. Mr. Tavaras further asserts that he gave respondent “a full set of keys for the Premises and the mailbox” on or about October 21, 2019 after respondent gave petitioner’s management office a copy of the court’s order in the lockout proceeding directing her restoration to possession. Mr. Tavaras also asserts that he gave respondent a second set of keys about a month later, when the lockout case was restored to the court’s calendar on petitioner’s motion to vacate the default judgment. DISCUSSION As a preliminary matter, that prong of respondent’s motion seeking leave to serve and file an answer is granted, and the proposed Answer attached to her moving papers as Exhibit Q is deemed duly served and filed nunc pro tunc. See, e.g., City of New York v. Candelario (156 Misc 2d 330, 601 NYS2d 371 [App Term 1993], affd in part, revd in part on other grounds 223 AD2d 617, 637 NYS2d 311 [2nd Dep't 1996]), citing Gluck v. Wiroslaw (113 Misc 2d 499, 449 NYS2d 567 [Civ Ct Kings Co 1982]). As explained by the Hon. Sabrina Kraus, “pursuant to RPAPL §743 the answer in a holdover proceeding is to be asserted or filed ‘at the time when the petition is to be heard.’ This statute has routinely been interpreted by the Courts to mean that the time for Respondent to file an answer is extended by adjournment of the proceeding unless ‘arrangements to the contrary have been made.’” Picken v. Staley (2011 NY Misc LEXIS 5910, 2011 NY Slip Op 33237[U] [Civ Ct NY Co May 16, 2011]). See also In-Towne Shopping Centers Co v. Demottie (17 Misc 3d 134[A], 851 NYS2d 70 [App Term 2nd Dep't 2007]) (adjournment to obtain counsel implicitly extends tenant’s time to answer); 974 Anderson LLC v. Davis (53 Misc 3d 1220[A], 48 NYS3d 266 [Civ Ct Bx Co 2016]). Turning to respondent’s request for dismissal based upon failure to properly serve the Notice of Petition and Petition, “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent Hanover Bank & Trust Co (339 US 306, 314, 70 SCt 652, 657, 94 LEd 865, 873 [1950]). Under RPAPL §735(1), one of the permissible methods of service of these papers, following “reasonable” attempts at personal or substituted service, is to affix a copy to a “conspicuous part” of the property to be recovered followed by first-class and certified mailings. See generally Eight Assocs v. Hynes (102 AD2d 746, 476 NYS2d 881 [1st Dep't 1984], aff’d, 65 NY2d 739, 481 NE2d 555, 492 NYS2d 15 [1985]). “Conspicuous place” service, also known as “nail and mail”, is what petitioner’s process server alleges to have done in this case. While an affidavit of service constitutes prima facie proof of proper service, Johnson v. Deas (32 AD3d 253, 254, 819 NYS2d 751, 753 [1st Dep't 2006]), when the respondent’s affidavit contains details denying service a traverse hearing is required to resolve the issues of fact as to personal jurisdiction, id. See also, e.g., Finkelstein Newman Ferrara LLP v. Manning (67 AD3d 538, 539, 889 NYS2d 147, 148 [1st Dep't 2009])(remanding matter for a traverse hearing where “defendant’s sworn nonconclusory denial of service sufficiently controverted the veracity or content of the affidavit of service”). Here, respondent asserts in her sworn affidavit that, after petitioner locked her out of the apartment and simultaneously changed the lock on the mailbox, although petitioner restored her to possession promptly following the court’s order to do so on October 17, 2019 she was not given a copy of the new mailbox key at that time. Respondent further asserts that she requested a mailbox key on the record at a subsequent appearance in the lockout proceeding on November 21, 2019 but was not given such a key until April 2020. Petitioner’s superintendent in his sworn affidavit counters with the assertions that he provided respondent with a copy of the mailbox key both in October 2019 and in November 2019. Given that petitioner disputes respondent’s allegations regarding her access to the mailbox, a traverse hearing is needed to resolve the issue of personal jurisdiction. Compare Linden Plaza Pres LP v. Bethel (2017 NYLJ LEXIS 3478, *3-4 [Civ Ct Kings Co 2017]) (where petitioner did not dispute respondent’s assertion that it was aware respondent lacked access to her mailbox, motion to dismiss for lack of personal jurisdiction granted without a hearing). Cf. City of New York v. Rogers (165 Misc 2d 240, 629 NYS2d 628 [Civ Ct Kings Co 1995])(respondent’s credible allegations of broken mailbox which petitioner was aware of constitute requisite showing of “excusable default” warranting vacatur of default judgment under CPLR R 5015(a)(1)). The parties present the same factual dispute on the issue of service of the predicate notice under RPAPL §735, which is an element of petitioner’s cause of action under RPAPL §713 and which respondent raises as her First Objection in Point of Law in her Answer. CONCLUSION While the motion, opposition and reply papers raise a number of other issues, there is no need to address them because there clearly are issues of fact regarding respondent’s access to the mailbox warranting a hearing. Accordingly, the motion is granted to the extent of deeming the proposed Answer duly served and filed and setting the matter down for a hearing on respondent’s First Objection in Point of Law of failure to state a cause of action due to defective service of the predicate notice and Second Objection in Point of Law of lack of personal jurisdiction due to defective service of the Notice of Petition and Petition. That prong of respondent’s motion seeking, in the alternative, appointment of a guardian ad litem will be held in abeyance. There is no indication that a guardian ad litem is needed for the hearing on the motion to dismiss and the request can be considered if that motion is denied. This case will be transferred to Part X for assignment to a trial part on a future date. This constitutes the Decision and Order of this Court, copies of which are being emailed to the parties’ respective counsel. Dated: September 21, 2020
