DECISION/ORDER In this commercial nonpayment proceeding, this Court, by order entered October 25, 2019, granted the motion of Respondent-Tenant 199 Roast LLC f/k/a 199 Water Street Bake LLC d/b/a Roast (Respondent-Tenant or Roast) for summary judgment only to the extent of setting the matter down for a traverse hearing on Roast’s second and third affirmative defenses. Those affirmative defenses challenged service of the Rent Demand and the Notice of Petition and Petition at the premises described in the Petition as the Southwesterly Store and Mezzanine, as formerly occupied by Lloyds Bank PLC, in the building known as and located at 199 Water Street, County of New York, in the City and State of New York (Premises) (Petitioner-Landlord’s exhibit 5). The second affirmative defense in the answer, verified by Alexander Xenopoulos, an alleged managing member of Respondent-Tenant, alleges that Petitioner-Landlord Resnick Seaport, LLC (Petitioner-Landlord) failed to properly serve a written Rent Demand. In particular, it alleges that “there is nobody named Raul Gonzalez employed at the subject premises and no one fitting the description set forth in the affidavit of service” (Verified Answer at 8). Accordingly, Respondent-Tenant asserted that this Court lacks jurisdiction and the Petition should be dismissed. The third affirmative defense alleges that this Court lacks personal jurisdiction and the Petition should be dismissed, because Petitioner-Landlord failed to properly serve a Notice of Petition and Petition. In particular, it states that the Fourth Lease Amendment requires all notices to be sent to “Paul Petras and another address in Manhattan” (id. at 11), and that Petitioner-Landlord did not serve the Notice of Petition and Petition to those addresses. Additionally, the third affirmative defense states that Oscar Pena is not employed at the premises, “nor is there someone fitting the description set forth in the affidavit of service for the Notice of Petition and Petition” (id. at 12). After a hearing, the Court holds that Petitioner-Landlord failed to meet its burden of establishing, by a preponderance of the evidence, proper service of the Rent Demand and Notice of Petition and Petition. Accordingly, the Petition and summary proceeding is dismissed, without prejudice. Law At a traverse hearing, it is the petitioner’s burden to establish proper service by a preponderance of the evidence (Chaudry Const. Corp. v. James G. Kalpakis & Assoc., 60 AD3d 544, 545 [1st Dept 2009]; Hanover Sq. Corp. v. Travers O’Keefe & Assoc. Inc., 31 Misc 3d 1230[A], 2011 NY Slip Op 50909[U] [Civ Ct, NY County 2011]). The service of a Rent Demand, and a Notice of Petition and Petition, are statutory prerequisites in summary nonpayment proceedings (see RPAPL 711[2], 735; Solack Estates, Inc. v. Goodman, 102 Misc 2d 504, 505 [App Term, 1st Dept 1979], affd 78 AD2d 512 [1st Dept 1980]). The failure to serve these papers pursuant to the strict mandates of the RPAPL requires dismissal of the Petition (see E.O.R. Five of N.Y. v. Fountain House, Inc., 1995 NY Misc LEXIS 763 [App Term, 1st Dept 1995]; Tradito v. 815 Yonkers Ave. Series TDS Leasing, LLC, 30 Misc 3d 3 [App Term, 2d Dept 2010]; 1626 Second Ave. LLC v. Notte Rest. Corp., 21 Misc 3d 1143[A], 2008 NY Slip Op 52490[U] [Civ Ct, NY County 2008]). Section 711 of the RPAPL provides that service of the Rent Demand must be made “as prescribed in section [735]” of the RPAPL (RPAPL 711). Pursuant to RPAPL 735(1), service of the Rent Demand, and the Notice of Petition and Petition, shall be made by (1) personal delivery to the respondent (personal service); (2) delivery to a “ person of suitable age and discretion who resides or is employed at the property sought to be recovered” (substitute service); or (3) if admittance cannot be obtained upon “reasonable application,” by “affixing a copy of the [papers] upon a conspicuous part of the property sought to be recovered or placing a copy under the entrance door of such premises” (conspicuous service) (RPAPL 735[1]). Where, as here, a limited liability company (LLC) is served, personal service can be made pursuant to CPLR 311-a (see e.g. 2505 Victory Blvd., LLC v. Victory Holding, LLC, 18 Misc 3d 279 [Civ Ct, Richmond County 2007]; see also Hon. Gerald Lebovits & Michael B. Terk, A Guide to New York State Commercial Landlord-Tenant Law and Procedure-Part II, NY St BJ, March/April 2015, at 35 [discussing personal service on a corporation]). Pursuant to CPLR 311-a(a), service of process on any domestic or foreign LLC shall be made by delivering a copy personally to the following: “(i) any member of the limited liability company in this state, if the management of the limited liability company is vested in its members, (ii) any manager of the limited liability company in this state, if the management of the limited liability company is vested in one or more managers, (iii) to any other agent authorized by appointment to receive process, or (iv) to any other person designated by the limited liability company to receive process, in the manner provided by law for service of a summons as if such person was a defendant” (CPLR 311-a[a]). Pursuant to CPLR 311-a(a), personal service may also be made pursuant to article three of the Limited Liability Company Law (id.), which provides for service upon the Secretary of State or a registered agent of the LLC. Within one day after substitute or conspicuous service under RPAPL 735, Petitioner-Landlord must mail the papers to Respondent-Tenant “by registered or certified mail and by regular first class mail” to the following addresses (RPAPL 735[1]), if the respondent is a “corporation, joint-stock or other unincorporated association”: “the property sought to be recovered, and if the principal office or principal place of business of such corporation, joint stock or other unincorporated association is not located on the property sought to be recovered, and if the petitioner shall have written information of the principal office or principal place of business within the state, at the last place as to which petitioner has such information, or if the petitioner shall have no such information but shall have written information of any office or place of business within the state, to any such place as to which the petitioner has such information” (RPAPL 735[1][b]). Courts have applied this mailing requirement to LLCs like Respondent-Tenant (see e.g. 30 Misc 3d at 6-7; see also 18 Misc 3d 279). Analysis The Court finds that Petitioner-Landlord failed to meet its burden of establishing proper service of the Rent Demand and Notice of Petition and Petition for the following reasons. First, the Court does not find the process server’s testimony regarding service of the Rent Demand to be credible. The process server testified in detail as to how he served the “rent demand notice” on an individual named “Oscar” (11/8/21 tr at 7-11). However, after being asked to refresh his recollection by looking at his affidavit of service for the Rent Demand, the process server changed his testimony and testified that he served Raul Gonzalez; he apologized but failed to explain his prior inconsistent testimony (id. at 11-12). On cross examination, the process server again needed to look at the affidavit of service for the Rent Demand to refresh his recollection as to the name of the person he allegedly served (11/26/19 tr at 29). And, when asked on re-cross examination whether Raul Gonzalez told the process server he was the manager, the process server responded with the question, “Who is Raul Gonzalez?” (12/11/19 tr at 26, lines 12-13). He had to be reminded that Raul Gonzalez was the person allegedly served with the Rent Demand (id., lines 14-15). Additionally, the Court finds that the logbook entry for service of the Rent Demand and the Notice of Petition and Petition on the Premises is unreliable and contradicts the process server’s testimony (see 115 Mulberry LLC v. Giacobbe, 46 Misc 3d 1229[A], 2015 NY Slip Op 50343[U] [Civ Ct, NY County 2014] [finding improper service where, among other things, the process server was not credible and the logbook was not reliable]). Under New York City’s Rules and Regulations, the records of licensed process servers, like the process server in this case (see Petitioner-Landlord’s exhibit 1), shall indicate, among other things, the “type of service effected, whether personal, substituted, conspicuous, or corporate (i.e. on the Secretary of State)” (6 RCNY 2-233[b][3]). In this case, the entries for Roast in the logbooks state “CO” in the “Type of Service” column (Petitioner-Landlord’s exhibit 4 at 44; Petitioner-Landlord’s exhibit 7 at 6). Other entries show an “S,” “C,” and “P” for the “Type of Service” (id.). When asked what “CO” stands for with respect to the Rent Demand entry, the process server responded, “Corporation” (11/8/19 tr at 33, lines 6-8). He did not explain what “S,” “C” and “P” stand for. As noted, under New York City’s Rules and Regulations, “corporate” means service on the Secretary of State (6 RCNY 2-233[b][3]). There is no evidence that the process server served the Rent Demand or the Notice of Petition and Petition on the Secretary of State. The process server testified that he served the Rent Demand and Notice of Petition and Petition on managers at the restaurant, and that he mailed those papers, by regular mail. Another individual, Salisha Hosein, testified that she performed a certified mailing for the Premises. Accordingly, the Court finds that the logbook entries for service of the Rent Demand and Notice of Petition and Petition are unreliable, because they indicate, in part, that service was performed on a corporation, which, by law, means the Secretary of State, while no evidence was submitted of such service. There also is no indication that the process server personally delivered the Rent Demand or Notice of Petition and Petition to Respondent-Tenant pursuant to CPLR 311-a. The process server did not testify that he served a manager or member of the LLC. He simply stated that he served managers working as cashiers at the restaurant. Nor was there any other evidence that the individuals purportedly served were managers or members of the LLC. Although the process server testified that the persons he served stated that they were authorized to accept service, the court finds that Respondent-Tenant refuted that testimony. Alexander Xenopoulos, Respondent-Tenant’s sole witness, testified that he supervised the hiring and firing of employees at the “premises” at 199 Water Street and that there was no employee named Raul Gonzalez, the individual purportedly served with the Rent Demand, or Oscar Pena, the individual purportedly served with the Notice of Petition and Petition (1/24/20 tr at 27-29). He also testified that only the general manager, Noah Calderone, was authorized to accept papers at that location (id. at 54, 56). The Court credits his testimony, which was not rebutted by Petitioner-Landlord. Additionally, the Court finds that Petitioner-Landlord failed to establish that it served the Rent Demand or Notice of Petition and Petition on Respondent-Tenant by substitute service on a “person of suitable age and discretion…employed at the property sought to be recovered” under RPAPL 735(1). While the process server testified that Raul Gonzalez and Oscar Pena were managers working as cashiers at the restaurant, Respondent-Tenant’s witness asserted that there were no employees by that name, and Petitioner-Landlord failed to rebut that testimony. Moreover, as noted above, the Court does not find the process server’s testimony to be credible; nor does it find the logbook entries for service of the Rent Demand and Notice of Petition and Petition upon Respondent-Tenant to be credible. The Court also finds that Petitioner-Landlord failed to show proper mailing of the Rent Demand and Notice of Petition and Petition, a requisite for both substitute and conspicuous service under RPAPL 735, for several reasons. First, the Certified Mail Receipt for the Rent Demand, entered into evidence as Petitioner-Landlord’s exhibit 11, fails to indicate that a mailing was performed at the address provided for on the Notice of Petition and Petition. In particular, there is no indication of a mailing to the “Southwesterly Store and Mezzanine” (Petitioner-Landlord’s exhibits 5, 11). Furthermore, the evidence indicates that the certified mailing for the Notice of Petition and Petition occurred before the alleged service on Oscar Pena, in violation of the strict mandates of RPAPL 735(1). As stated above, RPAPL 735(1) requires that the regular and certified mailing be done “within one day after” substitute or conspicuous service. Here, the affidavit of service for the Notice of Petition and Petition states that the Notice of Petition and Petition was served on Oscar Pena on August 15, 2019 and that the regular mailing occurred on August 15, 2019 (Petitioner-Landlord’s exhibit 6). The affidavit also indicates that an additional mailing was completed by certified mail, but no date is provided. Although Salisha Hosein testified that she performed the certified mailing after the service was complete and had the postal clerk stamp the receipt, she did not recall the date she performed the mailing. The stamp on the copy of the Certified Mail Receipt for the Notice of Petition and Petition, is faded, but clearly shows a “4″. If it was stamped on August 4, 2019 or August 14, 2019, it would be before the alleged service of the papers on Oscar Pena on August 15, 2019, in violation of RPAPL 735(1). Accordingly, there is a discrepancy between the stamp, which shows a certified mailing before the alleged service on Oscar Pena, and Salisha Hosein’s testimony that the certified mailing occurred after the alleged service on Oscar Pena. Petitioner failed to explain or clarify this discrepancy. Even if the Certified Mail Receipt was stamped on August 24, which is after the alleged service, it is well beyond the one-day deadline set forth in RPAPL 735(1). Moreover, both certified mail receipts admitted into evidence indicate that no postage was paid (see Petitioner-Landlord’s exhibits 11, 12). Given the foregoing discrepancies and that no affidavit of certified mailing was ever submitted by Ms. Hosein, the Court does not credit her testimony that a certified mailing occurred after the alleged service on Oscar Pena, if at all. Additionally, with respect to the Notice of Petition and Petition, as Respondent-Tenant asserted in its third affirmative defense, there is no evidence that any mailing of the Notice of Petition and Petition occurred at the addresses provided in paragraph 4 of the Fourth Lease Amendment Agreement (Fourth Amendment) (see Respondent-Tenant’s exhibit B). The Fourth Amendment, effective March 1, 2017 and executed by both parties, states in the first paragraph that Respondent-Tenant is located at “520 8th Avenue, Suite 2203, New York, NY 10018″ (the Eighth Avenue address) (id.). The fourth numbered paragraph states, among other things, that the address of Respondent-Tenant for the purpose of providing notice and other communications is the Eighth Avenue address, “with a copy to: Paul J. Petras, Esq. 60 Hillside Avenue Manhasset, NY 11030.” Respondent-Tenant’s witness indicated that there was an office besides the Premises, that “other people” not at the Premises, including “attorneys,” should be served with papers, that the office and attorneys would tell him if papers were served, and that neither the attorneys nor anyone from the office told him that papers were served (1/24/20 tr at 56-57). There was no testimony or other evidence from Petitioner-Landlord as to service at the addresses listed in paragraph 4 of the Fourth Amendment. The Court finds that the Fourth Amendment and the testimony of Respondent-Tenant’s witness, which was not rebutted by Petitioner-Landlord, shows that the Premises was not the principal office or principal place of business of Respondent-Tenant within the State (see RPAPL 735[1][b]). Additionally, the Court finds that the Fourth Amendment provided written notice to Petitioner-Landlord of an office or place of business in the State, other than the Premises. Accordingly, pursuant to RPAPL 735(1)(b) and the terms of the Fourth Amendment, the Court finds that petitioner should have mailed a copy of the Notice of Petition and Petition to the addresses provided in the Fourth Amendment (see 1995 NY Misc LEXIS 763; 30 Misc 3d 3), but failed to do so. Contrary to Petitioner-Landlord’s contention, the Court’s order entered October 25, 2019 did not limit the issues raised in the third affirmative defense to whether service was made upon Oscar Pena. In any event, the Court gave Petitioner-Landlord an opportunity at the traverse hearing to submit evidence as to the additional mailing issue raised in the third affirmative defense, and it failed to do so. In its post-traverse-hearing brief, Petitioner-Landlord argues that the additional mailing was not required because Respondent-Tenant has not conducted business at the Eighth Avenue address since early fall 2018. In support of this argument, Petitioner-Landlord relies on its memorandum of law submitted in support of its cross motion for summary judgment. Unsworn statements by an attorney in a memorandum of law is not evidence (Harris v. Wells Fargo Clearing Services, LLC, 2019 WL 2343383, *1, 2019 US Dist LEXIS 92434, *3 [SD NY June 3, 2019]). Thus, it is insufficient to establish a proper additional mailing under RPAPL 735. The Court declines to admit copies of the Rent Demand and affidavit of service for the Rent Demand into evidence. Respondent-Tenant objected to the admission of the copies of these papers as violating the best evidence rule. Petitioner-Landlord asserts in its post-traverse-hearing brief that the best evidence rule is inapplicable, because it is not seeking to prove the contents of either the Rent Demand or its affidavit of service. The best evidence rule “requires the production of an original writing where its contents are in dispute and sought to be proven” (Schozer v. William Penn Life Ins. Co. of New York, 84 NY2d 639, 643 [1994]). Regardless of whether the rule is applicable, the Court finds that the admission of copies of the Rent Demand and its affidavit of service are not necessary to its determination. As Petitioner-Landlord concedes in its post-traverse-hearing brief, the contents of the Rent Demand are irrelevant in a traverse hearing to determine the propriety of service of, among other things, the Rent Demand (see Petitioner-Landlord’s post-traverse hearing brief at 7). Furthermore, pursuant to CPLR 4531, an affidavit of service is prima facie proof of service only if the affiant is dead, mentally ill, or cannot be compelled to attend the trial. Here, the process server testified at the traverse hearing and, as the Court noted above, it ultimately does not find the process server to be credible since, among other things, he changed his testimony regarding service of the Rent Demand after looking at the affidavit of service. The Court also declines to admit the electronic records marked as exhibits 8a, 8b, 8c, 9, 10, 10b, and 10c. The process server testified that he obtained 8a, 8b, 8c, and 9 from a third party that maintained and had custody of his records. The process server did not testify that he was familiar with the record-keeping practices of the third party, and there was no testimony or other evidence regarding those practices. Accordingly, the Court finds that the process server was not able to lay a proper foundation for the admission of these records as business records under CPLR 4518(a) (see CPLR 4518[a]; 6 RCNY 2-233b[a][4][iv]; see generally Fowler v. Parks, 222 AD2d 239 [1st Dept 1992], lv denied 87 NY2d 809 [1996]; 505 W. 143rd St. HDFC v. Coppedge, 2013 NYLJ LEXIS 7369, *5 [Civ Ct, NY County 2013]). Moreover, exhibit 9 cannot be admitted as a certified business record under CPLR 3122-a, because it was not subpoenaed pursuant to CPLR 3120 (see CPLR 3122-a[a]), and it lacks the notarization required by CPLR 3122-a. Additionally, the process server testified that exhibits 8a and 10 were photographs that he took with his GPS device before he allegedly served the Rent Demand and Notice of Petition and Petition. The law requires that the “process server…ensure that the mobile device makes an electronic record of the GPS location, time and date of the attempted or effected service immediately after” service is effected or attempted, not before (6 RCNY 2-233b[a][2][i][emphasis added]). Furthermore, there was no testimony to lay a foundation for the admission of 10b and 10c. Notably, Petitioner-Landlord did not cite any law in response to Respondents-Tenants arguments on these foundation issues. Conclusion Given the foregoing determination, the traverse is sustained, Respondent-Tenant’s motion for summary judgment dismissing the Petition based on the second and third affirmative defenses is granted, and the Clerk is directed to enter a judgment dismissing the Petition and proceeding, without prejudice. Dated: June 7, 2021
