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F & Realty Corp v. 1014 Flatbush Avenue

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


February 8, 2013

F & REALTY CORP., RESPONDENT,
v.
1014 FLATBUSH AVENUE, INC.,
APPELLANT,
AND-
BALYIR GUJJAR DOING BUSINESS AS FRANCO'S PIZZA & FRIED CHICKEN, NARENDERA SINGH AND NEMET DELI & GRILL, INC., TENANTS.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 2, 2011.

F & V Realty Corp. v 1014 Flatbush Ave., Inc.

Appellate Term, Second Department

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 8, 2013

PRESENT: PESCE, P.J., WESTON and RIOS, JJ

The order denied a motion by tenant 1014 Flatbush Avenue, Inc. to vacate so much of a default final judgment as had been entered against it and to dismiss the petition insofar as asserted against it in a nonpayment summary proceeding.

ORDERED that the order is reversed, without costs, and the motion by tenant 1014 Flatbush Avenue, Inc. to vacate so much of the default final judgment as was entered against it and to dismiss the petition insofar as asserted against it is granted.

In this commercial nonpayment proceeding, 1014 Flatbush Avenue, Inc. (tenant) moved to vacate so much of a default final judgment as had been entered against it and to dismiss the petition insofar as asserted against it. In support of the motion, tenant's vice-president averred, among other things, that service was defective because landlord had written knowledge of tenant's corporate address in the Bronx and had nevertheless failed to mail a copy of the petition and notice of petition to tenant at that address following the process server's purported service of the petition and notice of petition upon a person of suitable age and discretion who was employed or resided at the premises. The Civil Court denied tenant's motion, stating that tenant had failed to show a reasonable excuse for the default and a meritorious defense.

In our view, service upon tenant was defective. RPAPL 735 (1) provides that where service is by substituted service upon a person of suitable age and discretion who is employed or resides at the premises, the papers must be mailed to the respondent by regular and certified or registered mail as follows: "(b) if a corporation, joint-stock or other unincorporated association, as follows: at 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. Allegations as to such information as may affect the mailing address shall be set forth either in the petition, or in a separate affidavit and filed as part of the proof of service."

Here, tenant showed, by its submission of a copy of an assignment of the lease executed by landlord, that landlord had written information as to tenant's corporate address and had failed to mail the papers to that address. Landlord submitted no opposition to rebut tenant's showing. Consequently, tenant's motion should have been granted (see Tradito v 815 Yonkers Ave. Series TDS Leasing, LLC, 30 Misc 3d 3 [App Term, 9th & 10th Jud Dists 2010]).

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: February 08, 2013

20130208

© 1992-2013 VersusLaw Inc.



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