Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:

Upon the foregoing cited papers, and after oral arguments on April 7, 2025, the Decision/Order on the respondent's motion to dismiss is denied and the matter is set down for a traverse hearing for the following reasons:

Petitioner commenced this summary proceeding in holdover. Respondent moved to dismiss under CPLR § 3211(a)(7) and (8) for failure to properly serve the predicate notice, notice of petition and petition, in compliance with the law. Petitioner opposed the motion, arguing it timely served the predicate notice, and that the notice of petition and petition were properly served pursuant to RPAPL § 735.

Respondent has the burden of proof under CPLR § 3211(a)(7) and "the question becomes [*2]whether the pleader has a cause of action, not whether the pleader has stated one, and unless it has been shown that a material fact as claimed by the pleader is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate." Matter of O'Hara v. Board of Educ., Yonkers City Sch. Dist., 198 AD3d 896 (2nd Dept., 2021).

The petition alleges Petitioner is the owner and landlord of the premises known as 3 Bedford Avenue (aka 627-629-631 Manhattan Avenue), Brooklyn, NY 11216; that Respondent is its tenant; and that Respondent remains in possession of the subject premises without permission of Petitioner. As this is sufficient to state a cause of action sounding in a summary proceeding in holdover, Respondent fails to meet the standard set forth under CPLR § 3211(a)(7), and its motion to dismiss on that basis is denied.

Respondent also seeks dismissal based upon the allegation of improper service of the termination notice and relies on ATM One, LLC v. Landaverde, 2 NY3d 472 (2004), which held that owners who elect to serve their tenants with notices to cure by mail must compute the date certain by which the cure must be effected by adding five (5) days to the 10-day minimum cure period. Respondent misapplies Landaverde. In holding that owners who elect to serve by mail must compute the date certain by adding 5 days to the 10-day minimum cure period, the Court of Appeals in Landaverde specifically declined to "extend its applicability to the commencement of summary proceedings." Id; see also, 135 PPW Owners LLC v. Schwartz, 7 Misc 3d 1016(A) (Civ. Ct. Kings Co. April 27, 2005). As service of the predicate notice of termination in this summary proceeding was on a suitable person, and not by mail, this Court finds Landervale does not apply, and Petitioner was not required to add five extra days for mailing. Additionally, unlike Landaverde, this case concerns a notice to terminate not a notice to cure, both of which operate differently.

Moreover, Respondent argues that this Court should dismiss this proceeding because Petitioner failed to timely file its proof of service with the court within three (3) days after the mailing of the predicate Thirty-Day Notice of Termination to Respondent, as required by RPAPL § 711(1), RPAPL § 735 and RPL § 232-a. In opposition, Petitioner argues that the requirement to file proof of service with the court within three days of the completion of service does not apply to notices of termination pursuant to the plain language of RPAPL § 735. The question the Court must determine is whether Petitioner is required to file its proof of service of its Notice of Termination with the Court within three days of mailing it, pursuant to RPAPL § 735(2)? The Court answers in the affirmative.

While it is true that the plain language of RPAPL § 735 does not address notices of termination, RPL § 232-a clearly does. The pertinent part of RPAPL § 735 requires that the notice of petition and petition, together with proof of service, be filed within three days after the mailing to the respondent, when service is not made by personal delivery, and further provides that "such service shall be complete upon the filing of proof of service." RPAPL § 735(2).

§ 232-a. Notice to terminate monthly tenancy or tenancy from month to month in the city of New York, states in relevant part:

No monthly tenant, or tenant from month to month, shall hereafter be removed from any lands or buildings in the city of New York on the grounds of holding over the tenant's term unless pursuant to the notice period required by subdivision two of section two hundred twenty-six-c of this article, or for a tenancy other than a residential tenancy at least thirty days before the expiration of the term, the landlord or the landlord's agent serve upon the tenant, in the same manner in which a notice of petition in summary proceedings is now allowed to be served by law, a notice in writing to the effect that the landlord elects to terminate the tenancy and that unless the tenant removes from such premises on the day designated in the notice, the landlord will commence summary proceedings under the statute to remove such tenant therefrom (emphasis added).

Based on the plain language of RPL § 232-a, there can be no dispute that RPAPL § 735(2) applies to service of notices of termination. A review of the court file shows service on a suitable person occurred on July 30, 2024, then on July 31, 2024, the notice of termination was mailed, and Petitioner filed its affidavit of service on September 18, 2024, more than three days after the notice of termination was mailed, in contravention of RPAPL § 735(2)(b).

However, although Petitioner filed its proof of service late, CPLR § 2001 provides, in relevant part, that "[a]t any stage of an action, including the filing of a summons with notice, summons and complaint or petition to commence an action, the court may permit a mistake, omission, defect or irregularity, to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded." CPLR § 2001 has also been held to apply to summary proceedings. See, NY Real Prop. Acts. Law § 735 (McKinney); see also, Nardeo v. Diaz, 2024 WL 371966, at 3 (Civ. Ct. Bronx Co. Jan. 31, 2024), citing, inter alia, United Services Auto. Ass'n v. Kungel, 72 AD3d 517 (1st Dept. 2010)("mere irregularity in a summary proceeding could be disregarded, rather than being a jurisdictional defect requiring dismissal").

The procedural irregularity here does not deprive the court of personal jurisdiction over Respondent, and Respondent has failed to show how it was substantially prejudiced by the late filings of the proof of service of the notice of termination. Petitioner has satisfied all other statutory filing deadlines, and the court finds, in its discretion, that the technical defects of the late filing of Petitioner's proof of service, pursuant to RPAPL § 735 (2), should be and is disregarded under CPLR § 2001. Ruffin v. Lion Corp., 15 NY3d 578, 583, 940 N.E.2d 909, 912 (2010).

Lastly, Respondent moves to dismiss the holdover petition pursuant to CPLR § 3211(a)(8) on the ground that the court lacks personal jurisdiction over Respondent due to the improper service of the notice of petition and petition. "While the ultimate burden of proof rests with the party asserting jurisdiction ..., the plaintiff, in opposition to a motion to dismiss pursuant to CPLR 3211(a)(8), need only make a prima facie showing that the defendant[s] w[ere] subject to the personal jurisdiction of the Supreme Court." Daniel B. Katz & Assocs. Corp. v. Midland Rushmore, LLC, 90 AD3d 977 (2nd Dept., 2011), citing, Cornely v. Dynamic HVAC Supply, LLC, 44 AD3d 986 (citation omitted). A process server's sworn affidavit of service is prima facie evidence of service. However, a respondent can rebut the process server's affidavit by a detailed and specific contradiction of the allegations in the process server's affidavit. Machovec [*3]v. Svoboda, 120 AD3d 772 (2nd Dept., 2014); Scarano v. Scarano, 63 AD3d 716 (2nd Dept., 2009). If the presumption is rebutted, a hearing to determine the propriety of service of process is necessary. Machovec, supra.

Respondent argues that service was not made in compliance with RPAPL § 735 as Petitioner claims to have served a person who was not at work on the dates service was allegedly made. Petitioner asserts it served the Notice of Termination on Respondent by delivering it to a "undertenant" named "Moe." At the onset, the court finds that the characterization of the person upon whom service was effectuated as an undertenant, instead of an employee as Respondent asserts, is simply a red herring, and the Court does not intend to address it further.

Petitioner also alleges to have served the Notice of Petition and Petition on Respondent by delivering it, again, to a person named "Moe." Respondent concedes that one of its employees goes by the name of "Moe," and that it has no other employee called "Moe." Respondent argues that "Moe" was off on the days Petitioner claimed to have effectuated service and has tendered Moe's time records in support of its argument that Moe was not at work on July 30, 2024, and January 6, 2025. The court notes that while the time records in Respondent's moving papers were not in admissible form, Respondent cured the inadmissibility with the amended affidavit submitted in its Reply.^[FN1]

Petitioner has established, prima facie, that Respondent is subject to the personal jurisdiction of this Court by filing its process server's sworn affidavit. However, Respondent has rebutted the process server's affidavit by submitting records that show the person upon whom service was effectuated was not at work at the time of the alleged service. As such, a traverse hearing to determine the propriety of service of process is necessary.

Accordingly, Respondent's CPLR 3211 § (a)(7) motion to dismiss based on failure to state a cause of action and its CPLR § 3211 (8) motion to dismiss for lack of personal jurisdiction based on failure to file the proof of service within three days of service and to add five extra days for mailing after conspicuous place service are denied. The parties are directed to appear for a traverse hearing on May 6, 2025, at 9.30 A.M. in Part 52.

This constitutes the decision and order of the Court.