Petitioner, CL Family Enterprises, LLC., commenced this holdover proceeding to recover possession of commercial premises located at 191 N. Highland Avenue, Ossining, New York ("subject premises") from respondents, DeRaffele Mfg. Co. Inc. ("DeRaffele") and Skyro Diner, Inc., as well as rent due in the amount of $67, 240.59.

PROCEDURAL HISTORY

The petition was returnable on December 8, 2011, and the matter was adjourned by the court and counsel. It continued to be adjourned by counsel thereafter until March 29, 2012. At that [*2]time, counsel appeared before the court, and DeRaffele's counsel expressed his intention to move to dismiss the petition on jurisdictional grounds. A briefing schedule was set.

DeRaffele filed a motion seeking dismissal of the petition upon the grounds that: 1) DeRaffele was not properly served with the Notice of Petition and Petition in accordance with a written agreement; 2) DeRaffele was not a tenant at the premises and 3) petitioner has been in possession of the premises since January 10, 2012. Petitioner filed a cross motion seeking leave to amend the petition to add a claim for rent that allegedly accrued during the pendency of this proceeding in the amount of $15, 470.59. Both motions were fully submitted on May 10, 2012.

The following papers were read:

Notice of Motion, Affirmation of Jeffrey M. Schwartz, Esq. and Exhibits "A"

through "F" annexed thereto;

Notice of Cross Motion, Affidavit of John H. Hersh, Esq. and Exhibits "A"

and "B" annexed thereto;

Affirmation in Reply of Jeffrey M. Schwartz, Esq. and

Reply Affidavit of John H. Hersh, Esq.

Upon the foregoing papers and for the reasons set forth below, DeRaffele's motion is granted and petitioner's cross motion is denied in its entirety. [*3]

FACTUAL BACKGROUND

On or about December 2, 2011, David Winkler as the Petitioner's manager signed the petition asserting that respondents' tenancy at the subject premises terminated on December 1, 2011 and that rent was owed in the amount of $67, 240.59. DeRaffele denies receipt of the notice of petition and petition and alleges it learned of the proceeding when petitioner's counsel faxed a copy of the petition to its attorney. DeRaffele's principal place of business is located at 2525 Palmer Avenue, New Rochelle, New York.

According to the affidavit of service filed by petitioner, DeRaffele was served with the notice of petition and petition by conspicuous- place service on Friday, December 2, 2011 at 8:10 p.m. by affixing at copy of the same to the door of the subject premises and then mailing a copy to it at the subject premises by first class and by certified mail. The affidavit of service was apparently prepared on Monday, December 5, 2011. The court file does not indicate when the affidavit was filed with the clerk.

DISCUSSION/ANALYSIS

As a preliminary matter, the court addresses the issue of whether the defense of defective service was waived by DeRaffele by failing to raise it prior to the service of the within motion. The court finds that the defense was not waived as the service of the motion constituted DeRaffele's formal appearance in the action, and the defense was preserved by raising it in the motion as well as in the answer apparently served the same day. See, 16 Lincoln Square Associates v. Amrep Corporation, 129 Misc 2d 697 (Civ. Court, NY County 1985).

The notice of petition and petition must be served in accordance with RPAPL §735 (1), which provides in pertinent part:

Service of the notice of petition and petition shall be made by personally delivering them to 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 of 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 . . . affixing or placement, by mailing to the respondent both by registered or certified mail and by regular first class mail,

if a corporation . . . as follows: 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 [*4]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 . . . . 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 a part of the proof of service.

NY Real Property Actions & Proceedings L §735 (McKinney's 2006).

The Collateral Assignment of Lessee's Interest in Lease for Collateral, which was executed on November 22, 2008 and which states that petitioner consents to the assignment of the lease at issue in the petition from Skyro Diner to DeRaffele, specifically provides that any notice or demands under the agreement are to be provided to DeRaffele at the address of its principal place of business. The sublease agreement, too, lists the address of DeRaffele's principal place of business. Thus, petitioner clearly had written information as to DeRaffele's principal place of business in the State of New York when this proceeding was commenced.

This case is governed by the holding in Tradito v. 815 Yonkers Avenue Series TDS Leasing, LLC., 30 Misc 3d 3 (App. Term, 2nd Dept.). In Tradito, landlords commenced a commercial nonpayment proceeding to recover possession and alleged arrears in taxes. They obtained a default final judgment following conspicuous-place service of the papers at the premises and mailing to the premises' address. On July 17, 2008, the tenants were evicted. The tenants moved to vacate the default judgment pursuant to CPLR 5015 (a)(1) and (4) to dismiss the petition and to be restored to possession. In reversing the lower court's finding that service was proper, the Appellate Term held:

In our view, service was defective. RPAPL 735 (1) provides that where resort is had to conspicuous-place service, the papers must be mailed to the respondent by regular and certified or registered mail "(b) if a corporation . . . as follows: at the premises 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. . . . In the instant case, the subject premises was manifestly not the principal place of business of the corporate tenant, which was the named tenant in the lease, and landlords has written information, both from the lease itself and from the corporation's rent checks, as to a place of business, if not the principal place of business, of the corporate tenant, and they made no effort to mail the process there . . .In light of the defective service, the branches of tenants' motions seeking, upon reargument, to vacate the default final judgment and to dismiss the petition should have been granted. (internal citations omitted)

Id. at 5-6.

Based upon the holding in Tradito, petitioner's knowledge of the address of DeRaffele's principal place of business and its failure to mail the notice of petition and petition to said address, the service of the notice of petition and petition herein was defective. Therefore, the proceeding against DeRaffele is dismissed. As the petition is dismissed, DeRaffele's counterclaim is dismissed without prejudice.

The foregoing constitutes the Decision and Order of the Court.

Dated:May 26, 2012

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HON. NANCY QUINN KOBA

Town Justice