35 Misc. 3d 8
N.Y. App. Term.2012Background
- In a commercial nonpayment summary proceeding, tenant WWTL moved to vacate a default judgment and to dismiss the petition against it.
- Tenant argued lack of personal jurisdiction due to improper service or, alternatively, excusable default with meritorious defense.
- A traverse hearing was held and the Civil Court denied tenant’s motion; the appellate court affirms.
- Service was effected by personal delivery under RPAPL 735(1) at the tenant’s business address, not at the premises.
- Tenant contends service under CPLR 311(a)(1) was defective because papers were left with a mere employee; process server argued apparent authority.
- The court found that the general manager, with supervisory duties and past acceptance of service, had apparent authority to accept service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service was proper on the tenant. | WWTL contends service complied with CPLR 311(a)(1) via a general manager's apparent authority. | Tenant contends service to a mere employee lacks proper authority under CPLR 311(a)(1). | Service proper; apparent authority supported valid service. |
| Whether tenant’s motion to vacate default could be granted based on excusable default and meritorious defense. | Tenant seeks vacatur for excusable default and shows meritorious defense | Tenant claims eviction defense negates rent liability | Tenant failed to show meritorious defense; motion to vacate affirmed? (Court denied; analysis shows no meritorious defense). |
Key Cases Cited
- Aguilera v. Pistilli Constr. & Dev. Corp., 63 A.D.3d 765 (2009) (apparent authority to accept service may bind defendant)
- Eastman Kodak Co. v. Miller & Miller Consulting Actuaries, 195 A.D.2d 591 (1993) (apparent authority for service on an officer or agent)
- Fashion Page v. Zurich Ins. Co., 50 N.Y.2d 265 (1980) (apparent authority principle in service of process)
- First Commercial Bank of Memphis v. Ndiaye, 189 Misc.2d 523 (2001) (courts penalize lack of strict compliance with 208.29 in some contexts)
- Rose Assoc. v. Becker, 153 Misc.2d 900 (1992) (procedural rule compliance considerations in NY Civil Court)
- Inter-Ocean Realty Assoc. v. JSA Realty Corp., 152 Misc.2d 901 (1991) (Uniform Civil Rules considerations in NY Civil Court)
- PDQ Aluminum Prods. Corp. v. Smith, 20 Misc.3d 94 (2008) (preservation of log-book records on service)
- SYZ Holdings, LLC v. Brecht Forum, Inc., 30 Misc.3d 64 (2010) (excusable default and meritorious defense considerations)