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Judgement denied against Fictitous corporation

Transwestern 25 West 43rd Street v. Gossage Regan Associates, Inc.

Petitioner landlord instituted this commercial non-payment proceeding against Respondent tenant and two Respondent undertenants, one of whom is a fictitious company. The fictitious company was added to include anyone in actual possession of the premises whose identity was unknown to Petitioner.

All of the Respondents defaulted and Petitioner moved for a judgment of possession as well as a monetary judgment against all Respondents. In support of its application for a warrant of eviction in conjunction with the request for judgment, Petitioner included copies of its Affidavits of Service of the Notice of Petition and Petition that were served on all Respondents. On each Affidavit of Service

the same named individual was indicated as the person served. The Affidavit included a description of the person served and stated that her position with each Respondent was that of “General Agent.” Respondent ABC Company is listed as a corporation on the Affidavit of Service.

Section 735 of the Real Property Actions and Proceedings Law (RPAPL) specifies the manner of service for summary non-payment proceedings. This section states, inter alia, that:

Service of the notice of petition and petition shall be made by personally delivering them to the respondent; or by delivering to and leaving personally with a person of suitable age and discretion who resides or is employed at the property sought to be recovered . . . .

Pursuant to service effected in accordance with this statute, a successful petitioner may recover possession of the property subject to the summary proceeding. However, it has been long established that in order to grant a monetary judgment against a defaulting tenant in a summary proceeding, the court must first acquire personal jurisdiction over the tenant in the same manner as would be required in a plenary action for rent. Macerich Queens Limited Partnership v. M.I.E. Hospitality, Inc., 192 Misc. 2d 276, 746 N.Y.S. 2d 341 (Queens 2002). In order to obtain the requisite personal jurisdiction over a corporation, service must be made pursuant to CPLR 311. McDonald v. Ames Supply Co., 22 N.Y. 2d 111, 291 N.Y.S. 2d 328 (1968).

Section 311 of the CPLR states that:

(a) Personal service upon a corporation or governmental subdivision shall be made by delivering the summons as follows:

1. Upon any domestic or foreign corporation, to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or law to receive service . . .

Service under CPLR 311 has been recognized to be a more stringent standard than what is prescribed under RPAPL 735 and these standards remain the subject of considerable dispute and confusion among the practicing bar. Manhaattan Embassy Co. V. Embassy Parking Corp., 164 Misc. 2d 977, 627 N.Y.S. 2d 245 (New York 1995).

In the case at bar, Petitioner has admittedly served the corporate respondents according to the dictates of CPLR 311; however, with respect to Respondent ABC Company, Petitioner, in its request for judgment, continues to maintain that “ABC Company” is a fictitious name, the correct name being unknown to Petitioner. It flies in the face of all legal logic that Petitioner would still be unaware of ABC Company’s true name if, as stated in Petitioner’s Affidavit of Service, service upon ABC Company was made by personally delivering a copy of the Notice of Petition and Petition to a named and described individual who the deponent averred that he knew to be ABC Company’s General Agent.

If the person served is in fact the General Agent of the subject Respondent she would have to know its correct name. Once the correct name of the Respondent-Undertenant is discovered, the Petitioner could, pursuant to CPLR 305( c), move to amend the Petitioner to provide the correct name of the Respondent corporation. Ober v. The Rye Town Hilton, 159 A.D. 2d 16, 557 N.Y.S. 2d 937 (2d Dept. 1990). In the instant case Petitioner has not made such a motion.

The court cannot grant a money judgment against a fictitious corporate respondent. Even though service was facially correct pursuant to CPLR 311, a flaw still exists precluding a money judgment because the actual name of the Respondent remains unknown. Consequently Petitioner’s request for a money judgment against ABC Company is denied.

It is noted that even if Petitioner were to maintain that ABC Company is not a corporation but an unincorporated association, the request for a money judgment against it would still have to fail. Pursuant to N.Y. Gen. Assoc. Law sections 12 and 13, an unincorporated association cannot be sued in the association’s name, but rather in the name of its president or treasurer, and jurisdiction is obtained by serving either the president or treasurer, not its general agent.