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Port Authority of N.Y. & N.J. v American Stevedoring Published Decision

By Dov Treiman


Decision of Interest

Port Authority of N.Y. & N.J. v. American Stevedoring
Inc., 105897/09
Decided: May 3, 2010

Judge Genine D. Edwards

KINGS COUNTY

Civil Court

The petitioner was represented by William J. Coury, Esq. of Hagan, Coury & Assoc., and Michael J. Geraghty, Esq. of Saiber LLC

The respondent was represented by Michael Weinstock, Esq. and Christopher Halligan, Esq. of Adam Leitman Bailey, P.C., and Michael Hiller, Esq. of Weiss & Hiller, P.C.

Judge Edwards

DECISION/ORDER
At a traverse hearing in this commercial holdover proceeding, prior to calling its witness, the respondent made a motion to dismiss the petition because the petitioner failed to strictly comply with RPAPL §735. Respondent claims that service of process should have been effected at the premises to be recovered.

This Court finds that in a summary proceeding, personal service of process upon a corporate officer is proper even if delivered at a locale other than the premises sought to be recovered by the petitioner. CPLR §311; 537 Greenwich LLC v. Chista, Inc., 19 Misc.3d 1133(A), 862 N.Y.S.2d 807 (Civ. Ct. N.Y. Co. 2008); McDee Family L.P. v. Royal T’s Gymnastics, Inc., 15 Misc.3d 1145(A), 841 N.Y.S.2d 821 (N.Y. Dist. Ct. Nassau Co. 2007). Therefore, respondent’s motion to dismiss the petition based upon the foregoing rationale is denied.

Turning to the hearing, petitioner’s process server, John Alleva’s testimony was wholly incredulous. This Court is left to wonder not only why there were different court stamps on the blue backs of the Notice and Notice of Petition, but more importantly, how Mr. Alleva copied the logbook entries when he testified that his logbook was stolen from his car on January 20, 2010 (he was notified of this hearing on February 24, 2010). This Court is not persuaded that any good cause was proffered that would warrant disregarding the rule requiring production of a process server’s logbook at a traverse hearing. 22 NYCRR §208.29; 22 NYCRR §208.1; Rose Assoc. v. Becker, 153 Misc.2d 900, 583 N.Y.S.2d 144 (Civ. Ct. Bronx Co. 1992); First Commercial Bank of Memphis v. Ndiaye, 189 Misc.2d 523, 733 N.Y.S.2d 562 (Sup. Ct. Queens Co. 2001); New York City Hous. Auth. Butler Houses v. Williams, 7 Misc.3d 1028(A), 801 N.Y.S.2d 237 (Civ. Ct. Bronx Co. 2005). Hence, Mr. Alleva’s testimony was not accorded any weight.

Furthermore, upon consideration of both post traverse hearing memoranda and the respondent’s letter dated April 29, 2010, this Court finds that respondent’s asserted counterclaims are related to the issues in this petition. Clearly, interposing unrelated counterclaims exposes a respondent to the court’s jurisdiction. Textile Technology Exchange, Inc. V. Davis, 81 N.Y.2d 56, 595 N.Y.S.2d 729 (1993). However, related counterclaims, which the respondent would be collaterally estopped from commencing in a subsequent action, do not waive the affirmative defense of lack of personal jurisdiction. Williams v. Uptown Collision Inc., 243 A.D.2d 467, 663 N.Y.S.2d 88 (2d Dept. 1997); Calloway v. National Services Industries, Inc., 93 A.D.2d 734, 461 N.Y.S.2d 280 (1st Dept. 1983); Veneer One v. Paone Woodworking Corp., 19 Misc.3d 1117(A), 862 N.Y.S.2d 818 (N.Y. Dist. Ct. Nassau Co. 2008).

Accordingly, the petition is dismissed due to lack of personal jurisdiction.

This constitutes the decision and order of this Court. ¦

CIVILCourt

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS