Port Auth. of N.Y. & N.J. v American Stevedoring, Inc. (2010 NY Slip Op 50795(U))

Port Auth. of N.Y. & N.J. v American Stevedoring, Inc.

2010 NY Slip Op 50795(U) [27 Misc 3d 1218(A)]

Decided on May 3, 2010

Civ Ct, Kings County

Edwards, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through May 12, 2010; it will not be published in the printed Official Reports.

At a traverse hearing in this commercial holdover proceeding, prior to calling its witness, the respondent made a motion to dismiss the petition because the petitioner failed to strictly comply with RPAPL §735. Respondent claims that service of process should have been effected at the premises to be recovered.

This Court finds that in a summary proceeding, personal service of process upon a corporate officer is proper even if delivered at a locale other than the premises sought to be recovered by the petitioner. CPLR §311; 537 Greenwich LLC v. Chista, Inc., 19 Misc 3d 1133(A), 862 NYS2d 807(Civ. Ct. NY Co. 2008); McDee Family L.P. v. Royal T's Gymnastics, Inc., 15 Misc 3d 1145(A), 841 NYS2d 821 (NY Dist. Ct. Nassau Co. 2007). Therefore, respondent's motion to dismiss the petition based upon the foregoing rationale is denied.

Turning to the hearing, petitioner's process server, John Alleva's testimony was wholly incredulous. This Court is left to wonder not only why there were different court stamps on the blue backs of the Notice and Notice of Petition, but more importantly, how Mr. Alleva copied the logbook entries when he testified that his logbook was stolen from his car on January 20, 2010 (he was notified of this hearing on February 24, 2010). This Court is not persuaded that any good cause was proffered that would warrant disregarding the rule requiring production of a process server's logbook at a traverse hearing. 22 NYCRR §208.29; 22 NYCRR §208.1; Rose Assoc. v. Becker, 153 Misc 2d 900, 583 NYS2d 144 (Civ. Ct. Bronx Co. 1992); First Commercial Bank of Memphis v. Ndiaye, 189 Misc 2d 523, 733 NYS2d 562 (Sup. Ct. Queens Co. 2001); New York City Hous. Auth. Butler Houses v. Williams, 7 Misc 3d 1028(A), 801 NYS2d 237 (Civ. Ct. Bronx Co. 2005). Hence, Mr. Alleva's testimony was not accorded any weight.Furthermore, upon consideration of both post traverse hearing memoranda and the respondent's letter dated April 29, 2010, this Court finds that respondent's asserted counterclaims are related to the issues in this petition. Clearly, interposing unrelated counterclaims exposes a respondent to the court's jurisdiction. Textile Technology Exchange, Inc. V. Davis, 81 NY2d 56, 595 NYS2d 729 (1993). However, related counterclaims, which the respondent would be collaterally estopped from commencing in a subsequent action, do not waive the affirmative defense of lack of personal jurisdiction. Williams v. [*2]Uptown Collision Inc., 243 AD2d 467, 663 NYS2d 88 (2d Dept. 1997); Calloway v. National Services Industries, Inc., 93 AD2d 734, 461 NYS2d 280 (1st Dept. 1983); Veneer One v. Paone Woodworking Corp., 19 Misc 3d 1117(A), 862 NYS2d 818 (NY Dist. Ct. Nassau Co. 2008).