Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of these motions:

After argument heard on June 5, 2025, the court finds as follows:

The petition in this proceeding alleges termination of a month-to-month tenancy pursuant [*2]a 90-day notice. (see NYSCEF Doc. Nos. 1 and 3).

Respondent obtained counsel, filed an answer and now moves for dismissal on several grounds. Respondent also seeks leave to conduct discovery in the event the case is not dismissed.

Respondent alleges improper service of the termination notice, improper service of the petition and notice of petition, and alleges the petitioner accepted rent after the termination notice expired but before the case was commenced (the "window period"). Discovery is sought as respondent alleges petitioner has failed to properly disclose the total number of units owned by petitioner and by the co-owner of the subject premises.

Petitioner, for its part, opposes dismissal and also cross-moves to amend the pleadings to disclose all units owned as required by the Good Cause Eviction Law ("GCEL"). Petitioner also seeks dismissal of respondent's harassment counterclaim.

Personal jurisdiction is a threshold issue. (see Hakim v Ahmed, 84 Misc 3d 1257(A), 1 [Civ Ct, Queens County 2024], citing Elm Mgt. Corp v Sprung, 33 AD3d 753, 755 [2nd Dept. 2006]; McSpedon v. Levine, 158 AD2d 618, 620 [2d Dept 2018]; AH Physical Therapy, P.C. v 21st Century Advan. Ins. Co., 74 Misc 3d 41, 42 [App Term, 2nd Dept., 2d, 11th & 13th Jud. Dists. 2021]). As such, the court must reach this issue before reaching the other dismissal grounds or other motions.

A process server's affidavit of service constitutes prima facie evidence of proper service (see Rox Riv. 83 Partners v. Ettinger, 276 AD2d 782, 783 [2d Dept. 2000]; City of New York v. Miller, 72 AD3d 726, 727 [2d Dept 2010]). However, a sworn non-conclusory denial can rebut the affidavit of service and necessitate a traverse hearing. (see Tzifil Realty Corp v. Temammee, 46 Misc 3d 144(A), 2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015], citing NYCTL 1998—1 Trust v. Rabinowitz, 7 AD3d 459 [1st Dept 2004]; Davis v. Davis, 84 AD3d 1080, 1081 [2d Dept 2011]).

When service is not made in hand to the respondent (personal delivery), jurisdiction is only obtained upon delivery of the papers [i.e. given to a person of suitable age and discretion or posted to the apartment entrance door] and proper mailing. (see George Deoulaveris & Son, Inc. v. P.J. 37 Food Corp., 39 Misc 3d 1 [App Term, 2d Dept., 2d, 11th & 13th Jud Dists 2013]; Siedlecki v. Doscher, 33 Misc 3d 18, 20 [App Term, 2d Dept., 2d, 11th & 13th Jud Dists 2011]).

Failure to do any part of service properly (delivery or mailing) renders service defective. (see 1626 Second Ave. LLC v Notte Rest. Corp., 21 Misc 3d 1143(A), 6 [Civ Ct, New York County 2008]; New York Housing Auth. v Fountain, 172 Misc 2d 784, 788 [Civ Ct, Bronx County 1997]).

Here, the process server swears he delivered the petition and notice of petition to a person of suitable age and discretion who did not give her name but asserted she resided at the subject premises. (see Doc. No. 5). The affidavit gives a physical description of the person served, a description of the area where delivery occurred and alleges the required follow-up mailing. (see id).

Respondent attempts to challenge the affidavit of service in several ways. First, she alleges that she lives alone. She concedes that the physical description of the person "vaguely" matches one of her daughters, but states that her daughter told her she was not served. She also challenges the description of the walls where service occurred. (see Doc. No. 10).

Petitioner responds that respondent does not sufficiently rebut the affidavit of service and, in any event, that personal jurisdiction is waived by respondent's harassment counterclaim.

Respondent's claims are too conclusory and equivocal to properly rebut the process server's affidavit. Even if respondent lives alone does not mean that her daughter was not present at the premises at the time of service and stated she resided there. (see Roberts v. Anka, 45 AD3d 752, 754 [2d Dept 2007], lv denied 10 NY3d 851 [2008]).

Critically, respondent failed to submit an affidavit from her daughter. (see id; Bedessee Imports, Inc. v. Najjar, 170 AD3d 640, 641 [2d Dept 2019]; C & H Imp. & Exp., Inc. v. MNA Glob., Inc., 79 AD3d 784, 785 [2d Dept 2010]; see also TBF Fin., LLC v. Eagle Tours, LLC, 172 AD3d 1269, 1270 [2d Dept 2019] ("While Sun claimed that he was told by Sai He that he did not receive any documents from the process server that day, Sun's assertion to that effect was inadmissible hearsay and amounted to a bare denial of receipt.") [emphasis added]).

In any event, respondent uses equivocal language in her affidavit which in insufficient to properly rebut the affidavit of service. For instance, respondent alleges what her daughter's "typical" schedule is, rather than what it was on the day of service. Also, respondent alleges the physical description in the affidavit only "vaguely" matches her daughter but fails to state how the description could be any more accurate. (see Nurhan v. Harley, 237 AD3d 728, 730 [2d Dept 2025] ("A minor discrepancy between the appearance of the person allegedly served and the description of the person served contained in the affidavit of service is generally insufficient to raise an issue of fact warranting a hearing. Further, the discrepancies must be substantiated by something more than a claim by the parties allegedly served that the descriptions of their appearances were incorrect.") [internal citations omitted]); PNC Bank, Nat'l Ass'n v. Bannister, 161 AD3d 1114, 1115 [2d Dept 2018]).

This further highlights the need for respondent to have submitted an affidavit from her daughter.

Respondent's additional allegation regarding the wall color do not require a hearing. Minor descriptive discrepancies do not require a traverse hearing. (see e.g. Nurhan v Harley, supra; U.S. Bank Nat. Ass'n v. Cherubin, 141 AD3d 514, 516 [2d Dept 2016]). Here, the allegations that the walls are brown, rather than tan is a minor discrepancy, even if true. (see e.g. Manhattan Realty Co. 1, LP v. Goldman, 61 Misc 3d 1205(A), 8 [Civ Ct, New York County 2018] (whether door was white or tan was deemed "insignificant")).

Finally, respondent argues that it is not clear whether service took place at the subject apartment or elsewhere in the building or at the front door of the building. This argument is without merit as the affidavit of service, in this court's view, clearly indicates service was at the subject apartment.

As to the required mailings, respondent's allegations regarding her mailbox are entirely conclusory. There is no proof that her mail does not get delivered due to an "unsecure" mailbox. In opposition, petitioner submitted a USPS printout denoting that someone accepted receipt of the certified mailing [as indicated in the affidavit of service] on January 27, 2025. (see Doc. No. 20). The tracking number matches the affidavit of service. Respondent did not present an affirmation denying this.

However, respondent also argues there is no proof of regular first class mailing as required by RPAPL 735(1). (see Doc. No. 11, p. 8-9 and Doc. No. 10, pars. 14-15). The affidavit of service is unclear on this point as it seems to combine first class mail and certified mail into one act. (see Doc. No. 5 and compare to the affidavit of service of the termination notice at Doc. No. 3). Although petitioner submits proof of the certified mailing, no proof of first-class mail is provided. (see Rodelli v. McArthur's Inc., 243 AD2d 1040, 1041 3d Dept 1997]).

Consequently, respondent would be entitled to a hearing to determine whether the petition and notice of petition were properly served by first-class mail.

However, the court finds that personal jurisdiction has been waived by respondent interposing an unrelated counterclaim.

When a respondent interposes a counterclaim that is unrelated to a plaintiff's claim, they waive any personal jurisdiction defense they may have had since they are taking affirmative advantage of the court's jurisdiction. (see Textile Technology Exch., Inc. v Davis, 81 NY2d 56, 58—59 [1993]).

A counterclaim is "related" when it must be asserted to avoid the risk of preclusion under principles of collateral estoppel. (see Textile Technology Exch., Inc. V. Davis, 81 NY2d at 59; N.A.S. Holdings, Inc. V. Pafundi, 12 AD3d 751, 752 [3d Dept 2004]; Halberstam v Kramer, 2013 NY Slip Op 50408(U) [App Term, 2d Dept 2013]).

This is a purported "no-grounds" holdover, as petitioner claims an exemption from GCEL. Harassment is certainly not a defense to this case.

Respondent attempts to combine the harassment counterclaim with the warranty of habitability counterclaim. These are distinct counterclaims. Petitioner does not challenge the warranty of habitability counterclaim in any way.

Breach of the warranty of habitability, while not a defense to the claim for possession in a holdover, is a defense to rental arrears and/or use and occupancy. (see 1691 Fulton Ave. Assocs., LP v. Watson, 55 Misc 3d 1221(A), 13 [Civ Ct, Bronx County 2017] (compiling cases); see also Goethals Mobile Park, Inc. v. Staten Island Meadowbrook Park Civic Ass'n, Inc., 208 AD2d 896, 898 [2d Dept 1994]; Kirkview Assocs. LP v. Amrock, 160 AD3d 1108, 1109 [3d Dept 2018] ("...these defenses cannot forestall an eviction in a holdover proceeding, but...they are viable defense[s] to the recovery of rent in such proceeding.") [citations and quotations omitted]).

Harassment, on the other hand, is not a defense to a possessory judgment or a monetary judgment. It is an independent claim under the Housing Maintenance Code. Critically, respondent, a lawful occupant, has the right to commence a harassment case at this time and the possible loss of possession at the end of this case does not affect her current right.^[FN1]

Numerous courts have held that harassment is an unrelated counterclaim. (see W. 92nd Assocs. LLC v. Hussein, 83 Misc 3d 200, 204 [Civ Ct, New York County 2024] (Hon. J. Bacdayan); Evans v. Evans, 85 Misc 3d 1254(A) [Civ Ct, Queens County 2025] (Hon. J. Schiff); Friedman v. Eisner, 23 Misc 3d 136(A) [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; ROL Realty Co. LLC v. Gordon, 29 Misc 3d 139(A), 920 N.Y.S.2d 244 [App Term, 1st Dept 2010]).^[FN2]

Consequently, any objection to personal jurisdiction has been waived. (see Friedman v Eisner, supra; Rol Realty Co., LLC v Gordon, supra).

Respondent also challenges service of the predicate termination notice. Although service related to same does not implicate personal jurisdiction, it is essentially a threshold issue;^[FN3] if the termination notice was not properly served, the case must be dismissed for the petitioner's failure to perform a condition precedent. (see 716 Realty, LLC v. Zadik, 38 Misc 3d 139(A), 1 [App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2013]; Kings Enterp. LTD v. Mastro, 2001 NY Slip Op. 40162(U), 1 [Civ Ct, New York County 2001]).

The propriety of the service of termination notice is evaluated under the same standard as service of the petition and notice of petition. (see Ford as Tr. of Joan Ford Revocable Living Tr. v. Ford, 86 Misc 3d 129(A), 1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]).

On one hand the process server alleges he delivered the termination directly to the respondent on July 17, 2024 at 12:37 PM. (see Doc. No. 3). On the other hand, the respondent concedes that the physical description in the affidavit "vaguely" describes her appearance, but swears she was not given the papers in-hand. She alleges she found a copy of the notice taped to the front door of the building. She further states she is "typically" not home on Wednesday afternoons because she has regular appointments. (see Doc. No. 10).

As we know, "a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing" (Deutsche Bank Natl. Trust Co. v. DaCosta, 97 AD3d 630, 631 [2d Dept 2012]; FV-1, Inc. v. Reid, 138 AD3d 922, 923—24 [2d Dept 2016]).

Here, respondent offers more than a conclusory denial (i.e. "I was not properly served."). She avers that she did not receive in-hand service, that she came home to find a copy of the notice on the taped to the front door of the building, and that she is usually not home when service is alleged to have occurred. (see Doc. No. 10). These are enough specific facts that directly refutes the process server's affidavit. (see PennyMac Corp. v. Barbosa, 189 AD3d 863, 865 [2d Dept 2020]; see also HMC Assets, LLC v. Dhanani, 173 AD3d 700, 701 [2d Dept 2019]).

Thus, proper service turns on the respective credibility of the process server and the respondent. As such, a hearing is required. (see Gray v. Giannikios, 90 AD3d 836, 837 [2d Dept 2011]; Fed. Nat'l Mortg. Ass'n v. Alverado, 167 AD3d 987, 988 [2d Dept 2018]).

Consequently, respondent's motion is partially granted and solely to the extent of setting [*3]this matter down for a hearing on the propriety of service of the termination notice. The balance of respondent's motion and petitioner's cross-motion are adjourned until the hearing.

The parties shall appear in Part B, Room 403, on July 17, 2025 at 2:15 PM with all witnesses and documents.

This constitutes the decision and order of the court. It will be posted on NYSCEF.