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Rossville Ave., LLC v Lex & Rob Delo Pizza, LLC2022 NY Slip Op 32524(U)April 12, 2022Civil Court of the City of New York, Richmond CountyDocket Number: Index No. LT-300223-22/RIJudge: Matthew P. BlumCases posted with a "30000" identifier, i.e., 2013 NY SlipOp 30001(U), are republished from various New YorkState and local government sources, including the NewYork State Unified Court System's eCourts Service.This opinion is uncorrected and not selected for officialpublication.
CIVIL COURT OF THE CITY OF NEW YORKCOUNTY OF ---------------------------xIndex No. LT-300223-22/RIROSSVILLE AVE. , LLCPetitioner,DECISION AND ORDER-against-HON. MATTHEW P. BLUMJUDGE CIVIL COURTLEX AND ROB DELO PIZZA, fendant's Notice of Motion to Dismiss and Affirmation, ExhibitsAnnexed . . . . . !Plaintiffs Affirmation in Opposition . . . . . . 2Defendant's Affirmation in Reply to Plaintiffs Opposition . . . 3Upon the foregoing cited papers, and oral argument, the Decision/Order on themotions are as follows:PROCEDURAL HISTORYThis action was commenced on or about March 11, 2022 by Rossville Ave., LLC(hereinafter "Petitioner") with the filing of the Notice of Petition and Petition on Lex and RobDelo Pizza, LLC (hereinafter "Respondent"). Prior to the commencement of the action,Petitioner and Respondent had a Lease Agreement for property located at 55 Gunton Place, Store1, Staten Island, New York 10309 1 (attached as Petitioner's Exhibit D & Unmarked RespondentExhibit). On May 5, 2021 , Respondent was served with a Default Notice alerting Respondent1The Lease Agreement between the parties describes the property as 55 Gunton Place, Store 1, Staten Island, NewYork 10309. Respondent's objection to said description is later addressed in this decision.1[* 1]
that at that time, Respondent owed 30,711.05 in unpaid rent (attached as Petitioner's Exhibit A& Respondent's Exhibit C). Subsequently, Respondent was then served with a 14 Day RentDemand (attached as Petitioner's Exhibit B & Respondent's Exhibit C). At that time,Respondent allegedly owed 48,815.74. Petitioner then filed this action seeking to recoverpossession of the aforementioned premises, 52,873.18 in unpaid rent, interest, costs, anddisbursements from January 5, 2021, and attorney 's fees. Oral arguments were heard inRichmond County Civil Court, Part 52, on March 31, 2022.Respondent now moves the Court to dismiss the action pursuant to CPLR §321 l(a) andthe RPAPL. First, Respondent claims that the Court lacks in personam jurisdiction over theRespondent pursuant to CPLR §321 l(a)(8) and RPAPL §735. Next, Respondent claims that theRent Demand served on Respondent is defective pursuant to CPLR §321 l(a)(l) and (7).Respondent further claims that the Notice of Petition does not reflect the clerk's endorsement asrequired by CPLR §321l(a)( l) and (7) and the New York City Court Act. Additionally,Respondent claims that the Petition fails to allege a rental agreement between the parties asrequired by CPLR §321 l(a)(l) and (7) and RPAPL §741(1), (2), and (4). Lastly, Respondentargues for dismissal of the petition pursuant to CPLR §3211 (a)(l) and (7) and RPAPL §741(3)on the grounds that the petition misidentifies the premises.2[* 2]
DISCUSSIONRespondent's motion to dismiss the action is denied in its entirety.The Court Has Personal Jurisdiction Over the RespondentRespondent argues that this Court lacks jurisdiction over the Respondent because theRespondent was not served the Notice of Petition and Petition in accordance with New YorkReal Property Act §735 and Paragraph 65 of the lease agreement between the parties. Petitioneropposes said argument by stating that Defendant's argument is founded in a misreading of thelease.CPLR §321 1 (a)(8) states "a party may move for a judgment dismissing one or morecauses of action asserted against him on the ground that . .the court has not jurisdiction of theperson of the defendant." When opposing a motion to dismiss a complaint pursuant to CPLR§3211 (a)(8) based on lack of jurisdiction, a plaintiff must only make a prima facie showing thatpersonal jurisdiction over the moving defendant exists, with the facts alleged in the complaint tobe deemed as true and construed in the light most favorable to the plaintiff and all doubts to beresolved in favor of the plaintiff. Fanelli v. Latman, 2022 N.Y.App.Div.LEXIS 857 (2d. Dep't2022). The party asserting in personamjurisdiction bears the burden of proof. SYZ Holdings,LLC v. The Brecht Forum, Inc., 30 Misc.3d 64, (2d. Dep' t 201 0); Bernardo v. Barrett, 87 A.D.2d832, 833 (2d. Dep't 1982). Pursuant to NY Real Property Act §735, "service of the notice ofpetition and petition shall be made by personally delivering them to the respondent or someoneof suitable age and discretion who resides or is employed at the property sought to be recovered,a copy of the notice of petition and petition, if upon reasonable application admittance can beobtained and such person found who will receive it; or if admittance cannot be obtained andsuch person found, by affixing a copy of the notice and petition upon a conspicuous part of the3[* 3]
property sought to be recovered or placing a copy under the entrance door of such premises; andin addition, within one day after such delivering to such suitable person or such affixing orplacement, by mailing to the respondent both by registered or certified mail and by regular firstclass mail. Furthermore, the Paragraph 65 of the Lease Agreement (attached as Petitioner'sExhibit D and Respondent's Unlabeled Exhibit), expressly states that communications fromLandlord to Tenant shall be deemed sufficiently given or rendered if in writing, delivered toTenant personally or sent by registered or certified mail.Respondent argues that Petitioner was required to personally serve Respondent in orderfor Petitioner to establish jurisdiction. Furthermore, Respondent argues that Petitioner wasrequired to make at least two attempts at personal service in order to satisfy the requirements ofconspicuous service. The Petitioner's Affidavit of Service signed by John Olivieri on February24, 2022 was submitted by both parties (attached as Petitioner's Exhibit F and Respondent'sExhibit B). This affidavit states that on February 23, 2022 at 3: 17 PM at 55 Gunton Place, Store1, Staten Island, NY 10309, Mr. Olivieri personally delivered the Notice of Petition, CommercialNon-Payment Petition, and Notice of Electronic Filing with Chris "Doe". The affidavit furtherstates that John Olivieri knew that Chris "Doe" was an Authorized Party/Managing Agent thatwas authorized to accept legal papers for the corporation. Additionally, the affidavit states thatthe documents were also sent via regular and certified mail on February 24, 2022. The affidavitprovides a description the person served. Respondent argues that there was no one authorized toaccept service at the premise at the day and time stated.Here, Petitioner's Affidavit of Service does not specifically detail how he knew that Chris"Doe" was an authorized agent of the Respondent. Notably, Respondent simply states that therewas no one authorized to accept service at the premise at the day and time stated. Respondent4[* 4]
does not elaborate further. Respondent then claims that subsequent attempts at finding anauthorized person were needed before mailing the notice and petition. The Court does not agree.Viewing the evidence in the light most favorable to the plaintiff when opposing a motion todismiss for lack or jurisdiction and viewing any issue of doubt in favor of the plaintiff, the Courtfinds that Respondent has failed to meet its burden to dismiss the complaint. Under the terms ofthe lease and under the law, Petitioner is deemed to have properly served Respondent as it hasserved a person of suitable age and discretion.The Written Rent Demand is ProperRespondent argues that the complaint should be dismissed because the Fourteen DayRent Demand (attached as Petitioner's Exhibit Band Respondent's Exhibit C) is conclusory inthat it states that the Tenant owes the Landlord 52,873.80 and provides no further factual detailas to how that amount was reached. Respondent cites CPLR 3211 (a)(l) and CPLR 321 l(a)(7)in support of its argument.CPLR § 321 l(a)(l) and (a)(7) state that a party may move for judgment dismissing oneor more causes of action asserted against him on the ground that a defense is founded upondocumentary evidence and the pleading fails to state a cause of action.The Court disagrees with Respondent's argument. A plain reading of the Fourteen DayRent Demand, delivered on January 21, 2022, indicates the total amount owed for rent andadditional rent for the period of September 1, 2021 through January 20, 2022. Furthermore, itindicates an attached Customer Balance Detail from January 20, 2022 that was not included onRespondent's Exhibit C but, was included as part of Petitioner's Exhibit C. Respondent' sargument fails to address this clear and unequivocal exhibit of unpaid rent. Furthermore, similar5[* 5]
to the Petition and Notice of Petition, the Rent Demand was served properly according to theaffidavit of John Olivieri from January 25, 2022 (attached as Respondent' s Exhibit C andPetitioner's Exhibit C).The Notice of Petition Reflects the Clerk's EndorsementRespondent further argues that Petitioner's claim should be dismissed because the Noticeof Petition lacks the endorsement of the Court Clerk as required by the New York City CivilCourt Act. The Court does not agree.As correctly stated by both Petitioner and Respondent, RPAPL §731(1) and the NewYork City Civil Court Act §401(c) require that a Notice of Petition be duly issued by a judge orclerk of the court. Here, as seen in Respondent's Exhibit A and Petitioner' s Exhibit C, theNotice of Petition clearly bears the electronic signature of Alia Razzaq, Chief Clerk, on February15, 2022 at 5:30 P.M., Richmond County Civil Court Landlord and Tenant Division.Respondent' s claim is without merit.Petition Adequately Describes the Rental Agreement/ Landlord Tenant RelationshipBetween the PartiesRespondent argues that the Petition fails to allege the existence of a rental agreement orlandlord tenant relationship between the parties as required by RPAPL §741(1),(2), and (4) andsimply claims that the landlord on the lease is not the Petitioner. Once again, the Court disagreeswith Respondent's argument.6[* 6]
RPAPL §(1),(2), and (4) details the requirements of a proper petition. Specifically, itstates that the petition shall state the interest of the petitioner in the premises from which removalis sought as well as the respondent's interest in the premises and his relationship to the petitioner.Here, the Petition is clear. As seen in Respondent's Exhibit A and Petitioner's Exhibit C,the Petition states that Rossville Ave., LLC, the Petitioner, is the Landlord of the premises andthat the Petitioner is the successor in interest to VCCI Holding Corp. It further details thatRespondent is the successor tenant who entered into possession under an Assignment andAssumption of Lease on December 19, 20 I 9 from Portofino Pizza LLC on a lease from August2014. The plain language of the Petition is clear in that is describes exactly who the parties are,their interest, and relationship.The Petition Adequately Describes the Premises Sought to be RecoveredRespondent argues that the Petitioner misidentifies the premises sought to be recovered inthat the Petition refers to "55 Gunton Place, Store 1" as the address of the premises when theactual address is 55 Gunton Place, Store I.RPAPL §741 (3) requires that a petition describe the premises from which removal issought. The description of the premises must not be vague, ambiguous, or inaccurate. Thedescription of the premises must be sufficient in detail so that a marshal, when executing thewarrant of eviction, may locate unequivocally the precise leasehold premises and effect aneviction without additional information outside the four corners of the petition. New York CityEconomic Dev. Corp. v. Kings Action Group. Corp., 2020 N.Y.Misc. LEXIS 565 (Civ. Ct.Kings County 2020) quoting Clarke v. Wallace Oil Co., 284 A.D.2d 492 (2d. Dep't 2001). Anaddress, even the address contained in the lease, without more specific descriptive language may7[* 7]
be insufficient. Id. quoting Sixth Street Community Center, Inc. v. Episcopal Social Services, 19Misc.3d l 14[A] (Civ. Ct. NY County 2008). Therefore, the analysis must focus on the functionalrelationship of the structure. Id.Here, the Petition states that the premises sought to be recovered is "55 Gunton Place,Store I ( 1,080 square feet) Staten Island, New York, I 0309". No other description is provided.The Court is well aware of the rather unforgiving nature of the controlling caselaw and the strictadherence to specificity in the description of a premises in a petition. The arguments fromPetitioner and Respondent essentially result in the question whether the use of the number " l" isa sufficient description of the subject premises. First, it should be noted that despiteRespondent' s argument that the real address of the premises sought to be recovered is "Store I",Respondent provides no evidence whatsoever that this is in fact the real address. Petitioner, onthe other hand, provides Petitioner' s Exhibit E, a Department of State, Division of Corporationsprintout. Petitioner's Exhibit E lists the Respondent's address as "55 Gunton Place, Suite 1,Staten Island, NY, I 0309". Although the Court is not permitted to consider any documentsoutside of the "four comers of the petition", it is unreasonable for the Respondent to now claimthat the address is incorrect when it is registered as an LLC under the number " I" as opposed tothe letter "I" and that its signed lease references the number "I" and not the letter "I". Again,Respondent provides no documentary evidence to the contrary. The Court believes that viewingsaid motion in the light most favorable to the non-moving party (Petitioner), there would be noconfusion in a marshal's ability to locate the premises and execute a warrant of eviction.Accordingly, Respondent's motion is denied.8[* 8]
ConclusionBased on the foregoing, Respondent's motion to dismiss is denied. This constitutes thefinal decision and order of this Court.Dated: Staten Island, New YorkApril 12, 2022HefN. MATTHEW P. BLUM, JCCHon. Matthew P. BrumJudge, Civil Court9[* 9]
Rossville Ave., LLC v Lex & Rob Delo Pizza, LLC 2022 NY Slip Op 32524(U) April 12, 2022 Civil Court of the City of New York, Richmond County Docket Number: Index No. LT-300223-22/RI
