BACKGROUND

This summary nonpayment proceeding was commenced by 115 MULBERRY LLC (Petitioner) against JOHN GIACOBBE (Respondent) the alleged rent-stabilized tenant of record seeking to recover possession of 115 Mulberry Street, Apt. # 5-F, New York, NY 10013 (Subject Premises) based on the allegation that Respondent had failed to pay rent due for the Subject Premises. NICHOLAS GIACOBBE (Nicholas) was not named herein, but resides in the Subject Premises, appeared in the proceeding and was added as a Respondent on consent of all parties.

Petitioner issued an undated rent demand, seeking $41,400.00 in arrears for a period covering December 2012 through October 2014, at a monthly rent of $1800.00. The rent demand is not dated and has an asterisk next to the total amount due that is not referenced elsewhere on the demand. The petition is dated November 21, 2014.

Respondent failed to appear or file an answer, and on January 16, 2015, the court (Schreiber, J) awarded Petitioner a judgment on default. The warrant of eviction issued January 21, 2015. On or about February 27, 2015, Petitioner executed on the warrant of eviction.

On March 3, 2015, Respondent and Nicholas appeared pro se and moved for relief pursuant to a post eviction order to show cause alleging the eviction had been without notice and that all rent due had been paid. Although the motion is supported only by an affidavit of Respondent, because Respondent was the only named party, it is on behalf of both Respondent and Nicholas, and both Respondent and Nicholas have fully participated in all aspects of the hearing.

The motion was granted by this Court on March 3, 2015, to the extent of setting the matter down for a hearing on March 10, 2015, on service of the rent demand, the petition, and for the court to determine the legality of the underlying eviction and whether Respondent and Nicholas could establish an excusable default and a meritorious defense.

On March 3, 2015, Counsel appeared on behalf of Respondent. Nicholas continued to appear pro se and asserted that he was residing in the Subject Premises.

On March 10, 2015, the proceeding and hearing were adjourned to March 16, 2015. On March 16, 2015, the proceeding was assigned to Part R for the court to conduct the hearing. Counsel for Respondent also appeared on behalf of Nicholas as of this date. The hearing continued on March 17 and concluded on March 18, 2015.

FINDINGS OF FACT

Petitioner purchased the Subject Building in 2012. Respondent is the rent stabilized tenant of record of Apartment 5-R in this building. Respondent does not live in the Subject Premises, but lives in Apartment 5R. There was no evidence that Respondent ever paid rent to Petitioner for the Subject Premises.

Petitioner alleges that Respondent isthe tenant of record for the Subject Premises as well as for Apartment 5R. Petitioner could not produce any lease which establishes this fact. Two of Petitioner's witnesses testified that they had seen a lease for the Subject Premises in the name of "John G" which was intended to be Respondent, but that said lease can not be found. One of Petitioner's witnesses testified that all the lease for all tenants in this building have been lost. A third witness for Petitioner testified that when Petitioner purchased the building in 2012 no leases for the Subject Premises were turned over.

Nicholas testified that he is the rent-stabilized tenant of record for the Subject Premises pursuant to a written lease. Nicholas could not produce said lease at the hearing, but testified as to the existence of such a document. Nicholas has consistently tendered rent to Petitioner for the Subject Premises. Petitioner's agent has consistently accepted said tender and issued a receipts to Nicholas for said payments, which were always made by Nicholas by personal delivery to the management office of Petitioner. Petitioner was aware that Nicholas claimed to be the Tenant of record of the Subject Premises, and that Nicholas is actually residing in the Subject Premises. Petitioner cashed payments tendered by Nicholas for the Subject Premises in his name for the months of July and September 2014.

Moreover, the record makes it clear that Nicholas had asserted his rights as a tenant of the Subject Premises for years. Petitioner rejected 22 different rent checks submitted by Nicholas covering the arrears sought in the petition. Petitioner did not mail these checks back to Nicholas at the Subject Premises, instead, Petitioner addressed the checks to a "John G" no last name or to Respondent and allegedly mailed then tot he Subject Premises. Nicholas was aware that Petitioner was not cashing the checks, but neither Nicholas nor Respondent ever received the checks that were allegedly returned back.

There is insufficient evidence in the record for the court to determine who is the tenant of record of the Subject Premises

Nicholas personally delivered the check every month to the management office for Petitioner. Between September 2012 and January 2015, Petitioner's managing agent issued 25 receipts for 25 months of payments each personally delivered by Nicholas. 12 of these receipts have Nicholas' name on them, and all but one of the receipts confirm that the rent being received from Nicholas is for Apartment 5F. Two of the payments delivered by Nicholas and for which Petitioner issued receipts were cashed by Petitioner, these were payments for rent for July 2014 and September 2014.

The managing agents and owner also met with Nicholas on three separate occasions to negotiate a buyout of Nicholas' tenancy from Apartment 5F.

Petitioner alleges they returned payments submitted by Nicholas by mailing them to Respondent at the Subject Premises. Petitioner held one years worth of rent payments tendered by Nicholas timely from December 2012 through December 2013, until February 2014, only then purporting to send them to Respondent (Ex 10c). The act of retaining the rent checks for one year is the legal equivalent of having accepted the payments, cashed the checks and creation of a tenancy (Roxborough Apt Corp v Becker 176 Misc 2d 503; International Business Machines Corporation v Joseph Stevens & Co LP 300 AD2d 222).

Jonathan Maimran, the agent for the prior owner, credibly testified that the DHCR registrations filed by the prior owner were not filed in accordance with law and that the information in the registrations had no bearing on the actual identity of the people living in and paying rent for the apartments. Thus the court does not find the DHCR registrations to be a reliable indication of the identity of the tenant of record for the Subject Premises.

The eviction of Nicholas without naming him or serving him with the petition was unlawful under the circumstances herein

Petitioner argued at the hearing that it had no obligation to name and serve Nicholas because he is a family member of Respondent. It is fair to say that the traditional rule, was that family members not named on a lease and whose right to occupancy derives solely from the tenant do not need to be named as respondents in a summary proceeding, where landlord has no notice of their occupancy [see eg 623 West 138th St. Realty Co. v. Castillo NYLJ Aug. 14, 1990 (brother in law of rent stabilized tenant not a necessary party to nonpayment proceeding where it was not shown that landlord had knowledge of his occupancy prior to commencement of proceeding and occupant asserted no independent right to possession)].

However this general rule is not applicable, where the family member is known to the landlord and is claiming independent possesssory right to the apartment [Scherer Residential Landlord-Tenant Law in New York, § 7.97; Stanford Realty Assoc v Rollins 161 Misc 2d 754 [*2](petition dismissed for failure to name respondent's wife); ATM One v Garcia NYLJ Apr. 24, 2002, p.22, co. 4 (tenant's sibling who lived in the apartment, paid rent and dealt with landlord had sufficient independent possessory interest to be a necessary party; Linden Lefferts, LLC v Cox 31 Misc 3d 84 (spouse of tenant who had lived in apartment for years and whose rent check was accepted by landlord had a right to appear in eviction proceeding therefore, final judgment and warrant issued in his absence should be vacated; 800 Ocean Avenue, Inc. v. Juarez 39 Misc 3d 147(A) (occupant established that he was in possession of the subject apartment and that landlord was aware of his presence in the apartment and did not make him a party to the proceeding, as such landlord was not entitled to execute warrant against occupant) ATM One v. Garcia NYLJ April 24, 2002, p.22, col .4 (tenant's sister who paid rent, dealt with landlord directly and occupied premises had acquired an independent possessory interest in the apartment triggering due process rights); Glen Cove Housing Authority v Hendricks 2002 NY Slip Op 40483(U)(family member of tenant who was sole remaining occupant of apartment had a due process right not to be evicted unless she was made a party to the proceeding); Rochdale Village, Inc. v Goode 16 Misc 3d 49 (claim to possession gives occupant standing to raise defenses in nonpayment proceeding); Fults v Munro 202 NY 34 (eviction of a wife who was not named in a proceeding where landlord has knowledge that husband had assigned the tenancy to the wife was unlawful)].

For a warrant to be effective against a subtenant or licensee due process requires that he be made a party to the proceeding either by naming him and serving him with the petition and notice of petition or by joining him as a party during the pendency of the proceeding [170 West 85th Street Tenants Association v Cruz 173 AD2d 338; NYCCCA § 110(d)]. "Although RPAPL 749 authorizes removing all persons from an apartment once a warrant issues in a summary proceeding, these persons may not be removed unless they have had a chance to defend themselves [Acquisition America v Diaz 872 NYS2d 689 citing (3 Robert F. Dolan, Rasch's Landlord and Tenant- Summary Proceedings § 46:10 at 198 (4th ed. 1998)(noting that persons who have claims to apartment may not be lawfully removed without being given their day in court or an opportunity to object to the proceeding' )]." The Diaz court properly noted that a landlord who wishes to contest the continued right to occupancy of an individual who is not the named tenant can bring a holdover proceeding, but can not seek to deprive the occupant of his day in court by bringing a nonpayment proceeding against the tenants in which the occupant is not named.

So too, in this case, if Petitioner wanted to legally evict Nicholas from the Subject Premises base on their unsubstantiated claim that he has no right to occupancy, Petitioner should have commenced a holdover proceeding, but Petitioner can not deprive Nicholas of his day in court by bringing instead a nonpayment proceeding in which Nicholas is not named or served.

Based on the foregoing the court can not determine on this record who is the rent-stabilized tenant of the Subject Premises. However, it was clear that under the circumstances it was unlawful for Petitioner to evict Nicholas without ever having named and served him.

Service of the rent demand was defective

Cory Banks (Banks) was Petitioner's first witness. Banks is a licensed process server. Banks had no independent recollection of the facts surrounding service of the demand and testified primarily from his log book, affidavit of service and other documents. Banks' affidavit alleges that he served a fifty year old white male, who was wearing a hat and refused to provide a name. The affidavit alleged that said person stated that he resided in the Subject Premises.

Banks acknowledged some statements in the affidavit of service were false. For example, Banks testified that he never asked the individual served what his name was, but the affidavit of service alleges that the person refused to provide a full name. Additionally, the individual is named as John Smith, typically this would imply that the person provided only a first or only a last name, but Banks testified that John Smith was used instead of John Doe to avoid a rejection of the warrant application.

Banks testified that he initially works off a "work ticket". The work ticket for service of the demand was entered into evidence (Ex 2). The work ticket indicates the request for service of the rent demand was received on October 16, 2014. The instructions indicated that service was to be completed by October 21, 2014. However, Banks' first attempt at service was three days past October 21, and was on October 24, 2014. The bottom of the work ticket has a description of the door and hallway, which is only applicable to service by conspicuous place delivery, and not where service is made upon a person of suitable age and discretion.

An examination of Banks' log book confirms that a description of the door and hallway is only included where service is alleged by conspicuous place, not where service is alleged on a person of suitable age and discretion. This because pursuant to § 89-cc (2)(h) such information is only required to be noted for service by conspicuous place delivery.

The court credits Banks' testimony that he was at the building on that date, but does not credit Banks' testimony that he found a person of suitable age and discretion to serve. The court believes that Banks fabricated that information, because the service was already late and there was insufficient time for him to do a second attempt. The court notes that after October 24, 2014, Banks did not make any additionally service until October 27, 2014, which would have delayed service another three days, if a second attempt was required.

Additionally, the court does not find Banks' log book to be a reliable document. For example, the court notes that on page four, all information pertaining to four different services on October 28, 2014, was crossed out and re written. In the new entries, which appear on the following page, all the times for the alleged services were changed. Moreover, there are numerous instances in the log book where instead of crossing it out and making a new entry as required by the rules [§ 89-cc (1)], Banks changes the information by writing over it which is prohibited by the regulations. This occurs on pages 6, 9, 10, 11, 14 (where one address is crossed out and an entirely new address is inserted), 15, 16, 17, and most egregiously on page 22 where a whole series of dates are changed by being written over. Finally, the court notes that the entries in the log book are not made contemporaneously with the service making it further unreliable, and not in conformity with applicable regulations (6 NYCRR 2-233(b)(1)).

Additionally, Nicholas credibly testified that he clearly remembers October 24, 2014 because it is his birthday. He left for work early in the morning and no one was in the Subject Premises when he left or had keys to access the Subject Premises other then Respondent.

Based on the foregoing, the court finds that Banks did not serve a person of suitable age and discretion at the Subject Premises as alleged in the affidavit of service and that service of the demand was defective.

Service of the Notice of Petition and Petition was defective

Eddie Rivera (Rivera), the process server who served the petition also testified. Rivera had no independent recollection of the details of this service.

As was noted by counsel for Respondent on the day of the hearing, the affidavit of [*3]

Rivera does not enter the information into is log book contemporaneously. 6 NYCRR § 2-231 provides that " Contemporaneous' in relation to entries in records means at or near the time of the event as to which an entry is recorded, or within a reasonable time thereafter." If Rivera had made the entries in his book on Friday when the service was allegedly made, the alleged error in the log book would not have occurred.

Rivera also failed to use a log book that complies with the regulations. Log books are required to be kept in a bound paginated volume (§ 89-cc(1)). " Paginated' means that each page in a volume or log, at the time of purchase, is sequentially numbered starting with the number 1' or contains an indelible label stating the number of pages the volume originally contained (6 NYCRR § 2-231). The book used by Rivera (Ex 7) neither starts with page 1 nor does it contain a label stating the number of pages the volume originally contained. In fact, it looks like the page numbers were stamped on after the fact one by one on the pages, which is apparent both from the variations in placement of the page numbers and what looks like red ink used for stamping of page numbers.

Rivera appears to have done the binding after the fact. The log book is kept in a sort of report cover. The back cover indicates that it can be used to insert between 29-56 sheets, and it is clearly not pre-bound at all.

Rivera was recalled by Petitioner on rebuttal, but failed to offer into evidence electronic records in admissible form establishing proper service of process. The process server or agency should have been able to produce said electronic records establishing that his inital attempt was on the 12th and not on the 14th, as he claimed. 6 NYCRR §2-233b requires process servers and agencies to keep electronic records through a device that records the date time and place of each service. § NYCRR §2-233b(4)(iv) further requires that the records be maintained " ... in a manner that will ensure that their integrity is adequate for admissibility in a judicial proceeding under the rules of evidence applicable in the state of New York." Rivera failed to produce such records. The one electronic record produced by Rivera was not reliable, did not conform with statutory requirements, and did not contain the information necessary for the court to determine if proper service was effectuated.

Additionally, Rivera's credibility was further damaged based on the nonmilitary affidavit filled out by Rivera, in support of Petitioner's default judgment, which the court finds contained false information. Rivera had no recollection of the facts alleged in the affidavit which alleged that on December 31, 2014 at 1:15 PM , he spoke with the Ms. Ho-Fuui in apartment 6F who affirmed that Respondent was not on active military duty. The description provided was of a [*4]female with light brown skin, black hair who was between 21 and 35 years old.

Ong Siew Eng (Eng) testified on behalf of Respondents. Eng credibly testified that she has been the sole resident and occupant of Apartment 6F since November 2013. Eng does not match at all the description Rivera provided, she is far older then 35, has brown hair not black, and does not speak more then a few words of English and would not be capable of responding to an inquiry on Respondent's military status.

Additional defects pertaining to service

The court also credits the testimony of Respondent and Nicholas that they received no notification of the proceeding by mail. Respondent and Nicholas established that the mailboxes were defective at the Subject Premises and the receipt of mail unreliable. Two photographs demonstrate the problems with the mailbox (Exs A & C), and Nicholas made a 311 complaint which included the problem with the mailboxes in March 2014 (Ex D).

Moreover, in addition to the above defects, Petitioner is on written notice and does not dispute that Respondent is the rent stabilized tenant of record for Apartment 5R in the Subject Building. However, Petitioner failed to comply with RPAPL §735(a) in that they were aware that Respondent lived in apartment 5R, but did not mail a copy of the pleadings herein to his actual residence in Apartment 5R.

Other defects in the pleadings

The court notes additionally that the petition contains several false statements. Paragraph one of the Petition alleges that Petitioner is the proprietary lessor of the Subject Premises. This is false. The Subject Premises is not a cooperative apartment.

Paragraph 8 of the petition alleges the rent had been personally demanded from Respondent. This is false no personal rent demand was made.

Paragraph 4 of the petition alleges that Respondent is in possession or claiming possession of the Subject Premises. In fact Respondent is not in possession of the Subject Premises and both Respondent and Nicholas assert that Nicholas is the Tenant of record, and as Petitioner is well aware Respondent actually resides in Apartment 5R.

Finally, Petitioner failed to establish by a preponderance of credible evidence at the hearing that Respondent is the tenant of record pursuant to a written lease wherein he promised to pay the rent sued for.

Petitioner's failure to apprise the court in its application for a default judgment that each and every month sued for had been tendered by Nicholas, that Petitioner held one years's worth of said payments before rejecting them, and that in fact two payments had been accepted and cashed constitutes a fraud upon the court

Even more disturbing is the affidavit in support of a default judgment executed by Sheryl Platero. This affidavit is intended to confirm for the court that no payments have been tendered [*5]for the sum sued upon. The affidavit states that as of the date Petitioner started the proceeding $43,200 in arrears was due and that no sums had been tendered since the proceeding had been started. The affidavit fails to mention that a check had been timely tendered for each and every month sued upon, but rejected by Petitioner because the check was tendered by Nicholas rather than Respondent. The affidavit fails to mention that Petitioner held without cashing one years worth of rent checks before allegedly sending them to Respondent, and that Petitioner cashed the checks for July and September 2014. The affidavit further did not advise the court of the payments tendered in-between the demand and the submission of Ms. Platero's affidavit in support of a default.

The court finds this conduct improper. Assuming arguendo Petitioner is correct and Respondent not Nicholas is the tenant of record for the Subject Premises, it was still incumbent upon Petitioner in applying to the court for a default to advise the court that in fact each and every month sued for had been tendered and rejected. The whole purpose of that affidavit of merits is to confirm for the court that the rent sued for had not been tendered. The failure to do so is the equivalent of perpetrating a fraud upon the court.

Petitioner's actions as a whole were calculated to deprive Nicholas of due process and were in bad faith

If there were any remaining doubt as to the lack of good faith in Petitioner's actions herein, one need only add that the eviction was conducted on Friday February 27, and the next day Petitioner alleges that it demolished the Subject Premises and rendered it uninhabitable. In his affirmation in opposition to the motion, counsel for Petitioner writes "The court is advised that the apartment has been demolished immediately following the eviction" and adds "Even so, there is no apartment to restore Respondent to. Upon affirmation (sic) and belief, the fixtures necessary to allow occupancy have been removed (March 2, 2015 aff in opp of G. Norelli). "

CONCLUSION

For all of the forgoing reasons the court finds that Petitioner never acquired personal jurisdiction over either Respondent or Nicholas, and that the eviction herein was unlawful. The court directs Petitioner to restore the Subject Premises to its prior condition forthwith, to return to the Subject Premises all of the belongings removed pursuant to the eviction, and to Restore Nicholas to possession forthwith. The petition is dismissed for the reasons stated.

This constitutes the decision and order of the Court.^[FN1]

Dated: March 20, 2015

New York, New York

___________________

Sabrina B. Kraus, JHC

Footnotes

Footnote 1:Parties may pick up Exhibits within thirty days of the date of this decision from the second floor record room, Window 9, located at 111 Centre Street. After thirty days, the exhibits may be shredded in accordance with administrative directives.