Motion Seq.: 1The following papers numbered 1 to 20 were read on this motion by the plaintiff, SWIFTLY SIMPSON, for a preliminary injunction staying the landlord-tenant holdover proceedings now pending in Queens County Civil Court under Index No. 81617/13; and the cross-motion of the defendant for an order pursuant to CPLR 3211 dismissing the plaintiff's complaint for lack of personal jurisdiction and failure to state a cause of action:

Papers

Numbered

Order to Show Cause-Affirmation-Exhibits-Memo of Law......1 - 6

Cross-Motion-Affirmation in Opposition-Exhibits...........7 - 13

Affirmation in Reply and Opposition to Cross-Motion......14 - 17

Defendant's Reply Affirmation............................18 - 20

Plaintiff, Swiftly Simpson, commenced this action against [*2]the defendant, Dorine Powell, by filing a summons and complaint seeking to set aside a deed dated March 11, 2013 in which the plaintiff deeded her interest in the property located at 149-04 133rd Avenue, South Ozone Park, New York, to the defendant, Dorine Powell, and for a judgment declaring plaintiff to be an owner of said premises. Plaintiff alleges that the transfer of her interest was made without consideration and was based upon fraudulent misrepresentations made by the defendant.

In her complaint, filed on December 23, 2013, the plaintiff alleges that in 2006, her sister, Dorine Powell and her sister's husband, Sebert George Powell, sought to purchase the premises at 149-04 133rd Avenue, South Ozone Park, Queens County. However, as neither Dorine Powell nor her husband could obtain the necessary financing to purchase the subject premises, Dorine Powell requested plaintiff to become a co-purchaser and join her and her husband in obtaining the requisite financing to purchase the subject premises. Plaintiff agreed, and by deed dated November 29, 2006, title to the premises was taken in the name of Dorine Powell and Sebert Powell who received a 99% interest and plaintiff, Swiftly Elise Powell, who received a 1% interest. The mortgage, in the principal amount of $300,000, was taken in the name of the plaintiff and defendant. Plaintiff alleges that she resided in the premises and paid 50% of the monthly costs including the mortgage, real estate taxes, and insurance.

Plaintiff further alleges that on March 11, 2013, defendant Dorine Powell, induced plaintiff to execute a bargain and sale deed transferring her 1% interest to Dorine Powell without consideration. Plaintiff asserts that the defendant failed to advise her that plaintiff's name would still remain on the mortgage. Subsequent to the transfer of her 1% ownership interest, the defendant, as landlord commenced a holdover proceeding against her sister in the Landlord-Tenant Court claiming that her sister was a tenant in the premises who failed to pay rent. Plaintiff now seeks an order setting aside the deed on the basis of fraud and lack of consideration, for an order declaring that she is an owner of the premises and for an order staying the landlord-tenant proceedings pending the determination of the Supreme Court complaint.

In her affidavit in support of the order to show cause, Ms. Simpson states that she did not realize that when she signed her interest in the property to her sister that she would be evicted from the premises. She states that she is not a tenant but in fact an equitable owner of 1% of the premises and therefore she is seeking to cancel of record the deed of March 11, 2013 on the ground of fraud and regain her legal interest in the property. [*3]

In opposition, the defendant cross-moves for an order vacating the temporary stay of the landlord-tenant proceeding and for an order dismissing the plaintiff's complaint for lack of personal jurisdiction and for failure to state a cause of action, Defendant asserts that the complaint fails to plead the essential elements of fraud with particularity as required by CPLR 3016(b). In her affidavit in support of the cross-motion, Dorine Powell states that she was not served personally with the order to show cause and was also not served with a copy of the summons and complaint in accordance with CPLR 308. The affidavit of service of the order to show cause states that it was served by certified mail on January 13, 2014. The affidavit of service of the summons and complaint indicates that it was served personally on the defendant pursuant to CPLR 308(2), on December 26, 2013, by service upon a person of suitable age and discretion namely, "Ms. Powell" who identified herself as a relative of the defendant. Dorine Powell states that she found the documents in her mailbox and contends that the affidavit of service is incorrect as there was no other female residing at her residence at the time the documents were purportedly served. Defendant served an answer and counterclaim dated February 14, 2014 in which she raised the affirmative defenses of lack of personal jurisdiction and failure to state a cause of action.

In addition defendant contends that the plaintiff knowingly and willingly transferred her 1% share of the premises to her and had the documents explained to her by an attorney, Robert Kane, who prepared the new deed. Defendant states that it was always agreed and understood by the plaintiff that she had no real ownership in the property and her name would be removed from the deed at some point. Defendant contends that the plaintiff has no real ownership interest in the premises having failed to prove she gave any consideration for her share. She states that her sister has lived with her for 25 years and when she attempted to raise the plaintiff's rent, plaintiff refused, and therefore she commenced the holdover proceeding.

Counsel for the defendant states that the motion must be denied as the plaintiff was not served in accordance with the Court's directive set forth in the order to show cause. Further, counsel asserts that plaintiff is not entitled to injunctive relief as she cannot show success on the merits nor irreparable harm. In addition, the defendant asserts that the complaint fails to plead the necessary elements of fraud with particularity.

Upon review and consideration of the plaintiff's order to show cause, defendant's cross-motion and affirmation in opposition and the plaintiff's reply thereto, this Court finds as [*4]follows:

The plaintiff's order to show cause is denied for failing to make personal service on the defendant, Dorine Powell, as directed in the order to show cause. Pursuant to the plaintiff's order to show cause, signed by the Court on January 8, 2014, service of a copy of the order to show cause together with a copy of the summons and complaint was directed to be made personally upon the defendant, Dorine Powell, at the address set forth in the summons and verified complaint. Service was also directed to be made upon defendant's counsel by certified mail. The defendant states that she was not served personally with the order to show cause and the plaintiff has not supplied an affidavit of service demonstrating personal service of the order to show cause. Plaintiff's counsel submits copies of postal receipts showing that he served both defendant and defendant's counsel by certified mail. In this regard, the courts have held that "pursuant to statute (CPLR 304; CPLR 403 [d]), the mode of service provided for in the order to show cause is jurisdictional in nature and must be literally followed" (Goldmark v Keystone & Grading Corp., 226 AD2d 143 [1st Dept. 1996] citing Matter of Bell v State Univ., 185 AD2d 925 [2d Dept. 1992][the mode of service provided for in the order to show cause is jurisdictional in nature and must be literally followed. The petitioner's failure to effect personal service deprived the court of personal jurisdiction over the respondents] Crown Waterproofing, Inc. v Tadco Constr. Corp., 99 AD3d 964 [2d Dept. 2012] Matter of Ruine v Hines, 57 AD3d 369 [1st Dept. 2008] Matter of Feldman v Feldman, 54 AD3d 372 [2d Dept. 2008] Matter of Correnti v. Suffolk County Dist. Attorney's Off., 34 AD3d 578 [2d Dept.2006][petition dismissed where order to show cause served by regular mail rather than certified mail as directed]). "Moreover, the fact that respondents received actual notice did not invest the court with jurisdiction. Notice received in a manner other than that authorized by statute does not confer jurisdiction (Goldmark v Keystone & Grading Corp., supra. quoting Macchia v Russo, 67 NY2d 592 [1986]), and the fact that respondent received actual notice of the action is of no moment (see Jewell v Iyer, 26 Misc 3d 131[A][1st Dept. App. Term 2010]). Therefore as the order to show cause is denied, the temporary stay of the holdover proceeding in Queens Civil Court contained in the order to show cause dated January 8, 2014 is vacated.

Defendant's cross-motion to dismiss the complaint for failure to state a cause of action is denied. This court finds that pursuant to CPLR 3106, the complaint sufficiently pleads a cause of action to vacate the deed of March 11, 2013 based upon fraud and misrepresentation. The complaint states that the [*5]plaintiff relied on the defendant's misrepresentations, that the misrepresentations were knowingly made by the defendant and were made with intent to deceive the plaintiff, and plaintiff suffered a loss of her share of the title in the premises as a result (see Lunal Realty, LLC v DiSanto Realty, LLC, 88 AD3d 661 [2d Dept. 2011] Leno v DePasquale, 18 AD3d 514 [2nd Dept. 2005]).

With respect to the branch of the cross-motion to dismiss the complaint for failure to obtain personal jurisdiction, the process server's affidavit stating proper service in accordance with CPLR 308, constitutes prima facie evidence of proper service (see Bank, Natl. Assn. v Arias, 85 AD3d 1014 [2d Dept. 2011] Scarano v Scarano, 63 AD3d 716 [2d Dept. 2009]). However, a defendant's sworn denial of receipt of service, containing specific facts to rebut the statements in the process server's affidavit, "generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing"(City of New York v Miller, 72 AD3d 726 [2d Dept. 2010] also see Wells Fargo Bank, N.A. v Christie, 83 AD3d 824 [2d Dept. 2011] Associates First Capital Corp. v Wiggins, 75 AD3d 614 [2d Dept. 2010] Washington Mut. Bank v Holt, 71 AD3d 670[2d Dept. 2010]).

As the affidavit of the defendant raises a question of fact as to whether service was properly made, this matter is set down for a hearing as to whether personal jurisdiction was acquired over said defendant.

Accordingly, the parties are directed to appear for a traverse hearing to be held in Room 304 of the Queens County Supreme Court, located at 25-10 Court Square, Long Island City, New York, 11101, at 10:00 a.m on June 19, 2014.

Dated: May 9, 2014

Long Island City, NY

___________________

ROBERT J. MCDONALD

J.S.C.