In compliance with CPLR 2219(a), this Court states that the following papers, numbered 1 to 3, were used on this motion by respondent to dismiss:

Papers Numbered:

Moving Papers 1

Exhibits to Moving Papers 1-A

Opposing Papers 2

Reply Papers 3

Upon the foregoing papers, the instant motion is denied.

As is often the situation, there are two ways to view the instant motion: through the lens of law and through the lens of common sense. Fortunately, at least this time, both views reveal the same result.

Petitioner is the lessor, and respondent is the net lessee, of the building at 424 West Broadway, New York, NY. As net lessee, respondent rents out, but does not occupy, the premises. In attempting to effect service of process in this non-payment summary proceeding, petitioner delivered a copy of the instant notice of petition and petition to (1) a receptionist at respondent's actual place of business, at 430 West Broadway, apparently right next door to the subject premises, and (2) to an employee of a subtenant of petitioner at the property at issue. According to respondent, petitioner never mailed copies thereof to the 430 address (or at least respondent never received them there), as required by statute and lease ¶¶ 12, 72. According to petitioner, and its Exhibit E, petitioner did mail copies to both addresses, by regular and certified mail.

Pursuant to RPAPL § 735, service of process in a summary proceeding may be made, simply put, by personal delivery; by delivery to a person of suitable age and discretion who lives or works at the premises; or by affixing upon a conspicuous part of the premises, or slipping under the door; [*2]and, in the latter two cases, by mailing to the premises or, if the principal office or place of business is elsewhere, and respondent has this information, to that other location.

Looking through the legal lens, petitioner did exactly that: delivered process to a person who works at the premises (and, for good measure, to a receptionist at respondent's actual place of business), and mailed process to the premises and to the actual place of respondent's business, as convincingly proven by the affidavit of service and the post office mailing receipts.

Looking through the common sense lens, petitioner served a person of suitable age and discretion at, and properly mailed copies to, the two locations of respondent of which petitioner was aware: one, the actual property that respondent rents from petitioner, and is the actual subject of this lawsuit, and the other, respondent's actual place of business, and the location specified in the lease to which notices were to be sent.

Respondent's principal argument, relying on Ilfin Co., Inc. v Benec Indus. Inc., 114 Misc 2d 411 (Civ Ct, NY County 1982), and its successor, SYZ Holdings, LLC. v Stuyvesant Bus. Center, LLC, 30 Misc 3d 64 (App Term, 2nd Dept 2010), is that personal delivery to the employee of the subtenant at the property sought to be recovered should be considered a nullity because she was not a person "of suitable age and discretion." This Court finds this argument unavailing for two reasons: first, those cases are distinguishable, and second, this Court interprets RPAPL § 735 differently, at least from the interpretation in Ilfin.

In Ilfin the only personal delivery was made to an employee of an office suite co-tenant of respondent. In SYZ, as best as can be determined from its bare-bones recitation of the facts, the only personal delivery was to an employee of a building co-tenant of respondent, and the mailing to the off-premises address was "returned as undeliverable." Both of these cases are distinguishable from the instant case because the respondent was actually doing business on the premises; thus, unlike here, petitioner could have served an employee of the respondent on the premises. They are also distinguishable from the instant case because the petitioner did not personally deliver process to any employee of respondent, whereas here petitioner personally delivered process to an employee of respondent while she was working at respondent's actual place of business. SYZ is further distinguishable because of the returned mailing.

In this Court's view, SYZ was correctly decided (assuming this court is interpolating the facts correctly) because there is no indication that the co-tenants actually occupied the same space, or even the same floor, as opposed (presumably) to the same building. Legally speaking, they appeared to be strangers, and personal delivery to one would have been a nullity as to the other. In Ilfin, the three co-tenants occupied the same suite, and thus to some extent the same work area. The judge there first considered whether the employee served was "employed at the property sought to be recovered" and concluded affirmatively, given the simple wording of the statute. However, the judge found, for several reasons, including that the employee had no "responsibility or duties to" the respondent, that the employee was not "of suitable age and discretion." [*3]

This Court has never considered "discretion" in the phrase "suitable age and discretion" to mean anything other than "maturity," or, more particularly, having the overall good sense to know that legal papers are important and should be delivered accordingly. To graft onto that meaning that the employee would not be of suitable "discretion" because he or she would not feel responsible to forward the papers to the person for whom they are intended appears to be contorted. This interpretation is particularly surprising given the Ilfin court's recognition of the "presumption," that "statutes are intended to be construed as written and that an omission is just as deliberate as an express provision." Thus, we must "presume" that the state legislature "deliberately" omitted any requirement that the person employed at the premises to be recovered be employed by the entity from which recovery is sought.

The Ilfin court also states that "[s]ervice of process is intended to afford notice," with which nobody could quibble, and that "[w]here possible, the statute should be construed to advance the purpose of effectuating valid service of process," presumably meaning actual notice (otherwise, it is a tautology). However, the legislature could have, but did not, declare that actual notice is the standard; rather, the legislature has declared that the petitioner must follow certain rules, and that service is valid or invalid regardless of actual notice. This Court has already called on the legislature to amend the RPAPL so that service is valid if actual notice is received or if petitioner follows the rules. To say that the statute should be construed to advance the cause of "valid service of process" is to beg the question of what is valid. Following rules is good; actual notice is also good; but the former is the standard. What this Court is against, and no case has held, is interpreting the statute to mean that the process server must follow the rules and the respondent must receive actual notice; respondents cannot have it both ways.

Various courts have distinguished Ilfin and have found service proper based on the exact situation present here, to wit, that personal service was made upon an employee of a subtenant. E.g., UNS Mgt. Assocs., Ltd. v JCH Realty Corp., 20 Misc 3d 1112A, 2008 NY Slip Op 51329U (Dist Ct, Nassau County).

Furthermore, the legislature has not imposed on process servers the duty to determine the employer of a particular employee. Sure, it would be nice if they always did this, but employees may be wary of identifying their employer; indeed, often they will not even provide their name. In some instances there may be an issue as to who, exactly, employs an employee.

Finally, this Court sees in RPAPL § 735, particularly as opposed to CPLR 308, a legislative intent to tie service to the property at issue. If you serve an employee there, and properly mail the papers, that should be good enough. An out-of-possession tenant may be less likely to receive actual notice, but that is the business model it has chosen to follow ("live by the sword, die by the sword"), and this should not increase the service burden on the landlord.

In the final analysis, petitioner's service complied, literally, with the statute, and appears more than reasonably calculated to have provided actual notice (and apparently did so). Thus, the motion is denied, and the parties are hereby directed to appear in Part 52, Room 353, on [*4]Wednesday, November 9, 2011, at 9:30 AM, for all purposes, including trial.

Dated:October 25, 2011

Arthur F. Engoron, J.C.C.