The petitioner, UNS Management Associates, Ltd.(UNS),commenced this commercial non-payment summary proceeding on April 10, 2008, requesting final judgment; possession of the premises to the petitioner-landlord; issuance of a warrant to remove respondents from possession thereof; judgment for rent in arrears against respondent tenant for $66,379.34; fair value of use and occupancy; interest from April 1, 2008; and costs and disbursements.

The respondent, JCH Realty Corp. ("JCH"), who is the tenant under the lease, moves for a dismissal of this proceeding pursuant to CPLR 3211, upon the grounds that: the Court lacks jurisdiction over the respondents because 1) they were improperly served and 2) the petitioner attempted to serve only once and the petition is defective because: 3) it fails to set forth a proper description of the premises as required under RPAPL § 741(3) and 4) the petition was signed by counsel and not the landlord. JCH is also demanding a copy of the fully executed lease.

The respondents, Grant Pudalov ("Pudalov"), Ira Goldberg ("Goldberg"), and Royal Mortgage ("Royal"), who are all subtenants of JCH, join in JCH's motion to dismiss and additionally move to dismiss the petition as defective because they were misidentified in the petition. They claim they were misidentified because they were named individually and not "Grant Pudalov, P.C." and "Ira Goldberg, P.C." respectively. Royal asserts, through the affirmation of Pudalov as its attorney, that it should have been named in the petition as "Royal Mortgage Services, Inc."

The respondent's first contention is that the Court never acquired jurisdiction based on [*2]improper service. JCH is the tenant of the premises 2545 Hempstead Turnpike, Suite 125, East Meadow, New York, which is also referred to in the respondent's moving papers as the "master suite". Pudalov has a suite within this master suite with a number of 120. Goldberg's suite number is 105. The moving papers do not say what number suite Royal has, but all three are within the master suite of 125. JCH asserts that service was improper because the Notice of Petition and Petition were served on Pudalov, who is not an employee or officer of JCH, nor was he ever authorized to accept service on behalf of JCH. Although they are both within the same master suite, JCH asserts that Pudalov's professional corporation is separate, distinct and independent from JCH.

Under RPAPL 735(1):

Service of the notice of petition and petition shall be made by personally delivering them to the respondent; or by delivering to and leaving personally with a person of suitable age and discretion who resides or is employed at the property sought to be recovered, a copy of the notice and petition and petition, if upon reasonable application admittance can be obtained and such person found who will receive it; or if admittance cannot be obtained and such person found, by affixing a copy of the notice and petition upon a conspicuous part of the property sought to be recovered or placing a copy under the entrance door of such premises; and in addition, within one day after such delivering to such suitable person or such affixing or placement, by mailing to the respondent both by registered or certified mail, and by regular first class mail ...

(b) if a corporation ... at the property sought to be recovered, and if the principal office or principal place of business of such corporation ... 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.

If the petitioner was claiming that the respondents, who are all corporations and should have been designated as such, were served, by personal delivery, he would have had to comply with CPLR 311 as well as RPAPL §735. As this Court discussed in Service Station Realty Corp.v. Universal Fuel Service Corp.,7 Misc 3d 1021(A) [Nassau Dist Ct 2005]:

Pursuant to RPAPL 735, personal delivery of the notice of petition and petition upon a corporation may be accomplished by personal service of the papers to one of the categories listed in CPLR 311 which states:

(a) Personal service upon a corporation or government subdivision shall be made by delivering the summons as follows:

(1) Upon any domestic or foreign corporation, to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service. [*3]

The petitioner is not claiming the respondents, who are corporations, were served process by personal delivery but by substituted service so the method of service could be different from that under CPLR 311. Silverman v. BPPT Enterprises, 144 Misc 2d 270 [Nassau Dist Ct 1989] is a case on point with the instant case. In Silverman, the prime tenant sublet commercial property to two subtenants and a summary proceeding was commenced against the prime tenant. The process server served an employee of one of the subtenants who agreed to accept process for the prime tenant. The Court found that the employee was a person employed "at the property sought to be recovered" as provided by RPAPL §735(1) and that the employee acknowledged authority to accept service. Based on the circumstances, the Court found that the subtenant's employee was a person of suitable age and discretion as provided in RPAPL §735(1) and that service upon the employee of the subtenant conferred jurisdiction over the prime tenant.

The respondent relies upon Ilf in Co. v. Benec Industries, Inc., 114 Misc 2d 411[Civ Ct, New York County 1982] to support its motion to dismiss because of improper service. In Ilfin, the Court granted the respondent's motion to dismiss due to improper service because the notice of petition and petition were served on an employee of a co-tenant of the respondent. The Court went on to say that "when determining whether service was proper the inquiry must be: under the circumstances, is it fair to say that the manner of service used is one that, objectively viewed, is calculated to adequately and fairly apprise the respondent of an impending lawsuit." Id. (quoting from 417 East Realty Assoc. v. Ryan, 110 Misc 2d 607 [Special Term, Civ Ct, New York County 1981], see also Top Value Homes, Inc. v. Continental petroleum Corp., 2 Misc 3d 1007(A) [Nassau Dist Ct 2004]) The Court found that as a general rule "it would be unfair and improper to say that an employee of another tenant" would be one of suitable age and discretion" and that the relationship between the co-tenants was "simply too remote." Id. The Court found it unreasonable that the process server believed the employee of the co-tenant was an appropriate person to accept process. The Court cited several factors in reaching this ruling: 1) the employee served was not an employee of the respondent; 2) the businesses were separately maintained and the landlord was aware of that fact; 3) the employee owed no duty or responsibility to the respondent and 4) the employee told the process server that he was neither employed by the respondent nor authorized to accept service for him.

In the instant case, Pudalov is not a co-tenant of the respondent, JCH, as in Ilfin, but rather he is a subtenant of the respondent. Pudalov, as a subtenant, does not have a separate or concurrent lease with the landlord as a co-tenant, but instead his tenancy is based on his relationship with JCH, the tenant. As a subtenant, Pudalov has an interest in whether JCH, as the tenant, is allowed to continue his lease with the landlord. Therefore, the relationship between JCH and Pudalov is not "too remote." The Court would also note that Pudalov is the attorney representing the respondents in the instant case. Based on the circumstances, the Court would find that the manner of service objectively viewed would adequately and fairly apprise the respondent of the impending lawsuit by the petitioner. An issue does exist, though, as to whether Pudalov told the process server that he was not authorized to accept service for the other respondents, JCH, Goldberg and Royal. Pudalov denies accepting service of process for them. The affidavit of the process server states that Grant Pudalov was a "person of suitable age and discretion, who was willing to receive" the notice of petition and petition for the other [*4]respondents. The affidavit of the process server also states that the required mailing requirements were complied with by the process server. As there exists an issue as to whether Pudalov agreed to accept service for the other respondents, this case is to be set down for a Traverse hearing.

The respondent's second contention is that service was insufficient because service of process was attempted only once. Under RPAPL §735 (1): "A reasonable application must be made to effect personal or substituted service before a resort is taken to conspicuous service." Brooklyn Heights Realty Co. v. Gliwa, 92 AD2d 746 [2d Dept. 1983] (see also House of Bower Corp. v. Ensley, 182 Misc 2d 471[Civ Ct, New York County 1999]) The fact that only one attempt was made to serve process on the respondents would only be relevant if the method of service was conspicuous service. "No prior attempt is required" when resorting to substitute service. House of Bower Corp. v. Ensley supra ( quoting from 525 Park Ave. Assocs v Kwit NYLJ, July 15, 1987, at 11, col 1[AppTerm, 1st Dept] Petitioner would have to show a reasonable application of effort by the process server to serve process which is "less than that required under CPLR 308(4) ("due diligence")" but "the effort must have some expectation of success." Brooklyn Heights Realty Co. v. Gliwa supra, quoting from Palumbo v. Estate of Clark, 94 Misc 2d 1[Civ Ct, Bronx County 1978] Based upon the affidavit of the process server, the process server succeeded at substitute service by serving a person of suitable age and discretion. The process server would only need to show a reasonable application of effort if resorting to conspicuous service. Accordingly, the respondent's motion to dismiss based on the fact that the process server made only one attempt at process is denied.

The respondent's third contention is that the petition is defective because it fails to set forth a proper description of the premises as required under RPAPL §741(3) which states that, among other things, the petition shall "describe the premises from which removal is sought." The description needs to be a "specific enough description of the premises occupied by respondent to allow the marshal when executing the warrant of eviction to locate the premises without additional information." Elui Realty Corp. V. Java New York Ltd., 12 Misc 3d 336 [Civ Ct, Kings County 2006] In Elui , the Court granted dismissal because the description in the petition was incomplete and vague and the marshal would have been confused as to which tenant was to be evicted. All the petition said in describing the premises was "part of the second floor". Three other tenants were also on that floor. In the instant case, the description of the premises on the petition says "Suite 125 at 2545 Hempstead Turnpike, East Meadow, New York." The Court finds that the description,"Suite 125", was not so incomplete or vague as to result in any confusion as to who was a respondent in the summary proceeding, in that all occupants of suite 125, the tenant and all the subtenants, were designated as respondents. Accordingly, the respondent's motion to dismiss on this basis is denied.

The respondent's fourth contention is that the petition is defective because it was signed by the petitioner's counsel and not the petitioner. RPAPL§ 741 states that: " An attorney ... may verify the petition on information and belief notwithstanding the fact that such person (the petitioner) is in the county where the attorney has his office." The Court finds that the petitioner's counsel verified the petition upon information and belief "based upon conversation [*5]with the petitioner's president, Uday Shah." The respondent's motion to dismiss because the petition was verified by petitioner's counsel and not petitioner is denied.

Pudalov, Goldberg and Royal additionally move to dismiss because they were misidentified in the petitioner's motion. They claim the Court never obtained jurisdiction over them because Pudalov and Goldberg were misidentified in the caption as individuals instead of naming their respective corporations."Grant Pudalov, P.C.",and "Ira Goldberg, P.C.". Royal claims it was misidentified becausethe caption says "Royal Mortgage" instead of "Royal Mortgage Services, Inc.""John Doe" and "XYZ Corp." are included in the caption of the notice of petition and petition, in addition to Pudalov, Goldberg and Royal. These designations are included in the caption to include any parties unknown to the petitioner. The "John Doe" designation isincluded to obtain jurisdiction over any unknown individual and the "XYZ Corp." is included to obtain jurisdiction over any unknown corporation. CPLR 1024 addresses "unknown parties."

CPLR 1024 states:

A party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his name and identity as is known. If the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly.

In Teachers College v. Shirley Wolterding, 77 Misc 2d 81, [App Term 1st Dept 1974], the Court ruled that a defect in the caption was "amenable nunc pro tunc" (citing CPLR 2001, 3 Rasch, Landlord and Tenant [2d ed.] §1279) and would not rise to the status of a jurisdictional defect, if the amendment was a misnomer, the respondent was before the Court and no substantial prejudice would be suffered by the amendment. The Court went on to say that "form may not be so exalted over substance."Id.

In the present case, the caption designates the respondents, Pudalov and Goldberg, as individuals and not as professional corporations. The caption did have a designation for "XYZ Corp." to include any corporations that were unknown to the petitioner. The respondents Pudalov and Goldberg were both on notice, as individuals and also as principals of their respective corporations, of the present summary proceeding. Therefore, the Court finds that no substantial prejudice would be suffered by the respondent corporations by an amendment of the caption to include them. The Court finds that the caption should be amended to include "Grant Pudalov, P.C." and "Ira Goldberg, P.C.", as well as to amend Royal Mortgage as a respondent in the caption to "Royal Mortgage Services, Inc."

The Court would note that while the amendment of the caption is being directed, the respondents Pudalov, Goldberg and Royal are all subtenants, and that they are not necessary parties to the proceeding. "It is well recognized that undertenants are not necessary parties to a summary proceeding." Id (citing Rasch, 2 Landlord and Tenant [2d ed.], § 1204). [*6]

In regard to JCH's demand for discovery, the petitioner is directed to provide a copy of the fully executed lease to the respondent pursuant to CPLR 3101.

All parties are directed to appear for a Traverse hearing , in the Landlord/Tenant Civil Part 2, of the First District Court, located at 99 Main Street, Hempstead, New York on the 16th of July, 2008.

So Ordered:

/s/

DISTRICT COURT JUDGE

Dated:July 2, 2008

CC:Grant Pudalov, P.C.

William D. Friedman, Esq.

SF/mp