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Fifth Partners LLC v. Privco Media LLC

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DECISION AND ORDER Petitioner Fifth Partners, LLC (the “Landlord”), moves: (i) to amend its commercial non-payment petition to include all base rent and additional rent due through the date of the instant motion; (ii) to dismiss the defenses of respondent Privco Media LLC (the “Tenant”) pursuant to CPLR 3211(b); (iii) for summary judgment granting a judgment of possession and a money judgment pursuant to CPLR §§3212 and 409(b); and (iv) for a separate money judgment for legal fees. Tenant opposes the motion, asserting absence of service of process and, in any event, the existence of issues of fact as to its affirmative defense of actual or constructive eviction.For the reasons set forth herein, Landlord’s motion is held in abeyance pending a traverse hearing on the issue of service of process.“Ordinarily, a process server’s affidavit of service constitutes prima facie evidence that the defendant was validly served. However, when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit of the process server, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing.” (Citibank, N.A. v. Balsamo, 144 AD3d 964, 964 [2d Dept 2016] [citations omitted].)Here, Tenant has asserted specific facts to rebut the statements in the affidavit of the process server. Tenant asserts that video footage taken at the premises at the time referenced in the affidavit of service of the notice of petition and petition (April 30, 2018) confirms that the service attested to in that affidavit never occurred (Affidavit of Basil Hamadeh for Tenant [the "Hamadeh Aff."]

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