The petitioner-landlord commenced this nonpayment proceeding in June 2008 seeking to recover rental arrears in the amount of $8,685.00, representing unpaid rent from September 2007 through June 2008. The subject residential premises have been converted to cooperative ownership, and are accordingly, not subject to rent control or the Emergency Tenant Protection Act..

Respondent now moves to dismiss the proceeding on the grounds that 1) he was not properly served with the petition (RPAPL § 735), 2) the petition fails to adequately describe the premises from which removal is sought (RPAPL § 741(3)), 3) the petition is not properly verified (RPAPL § 741) , and 4) the alleged three day rent demand is not attached to the petition (RPAPL § 711). The petitioner has filed no papers in opposition to the motion.

The Court first addresses respondent's contention that he was not properly served with the Petition. Respondent argues that he never received a copy of the Notice of Petition or Petition by certified mail, nor did he find a copy affixed to his door.RPAPL § 735 governs the methods of service of process by which jurisdiction over a respondent to a summary proceeding is conferred (Eight Assoc. v. Michael Hynes, 476 NYS2d 881 {102 AD2d 746} ). The statute provides that "service of the notice of petition and petition shall be made by personally delivering them to respondent; . . . or if admittance cannot be obtained and such person found, by affixing a copy of the notice and petition upon a conspicuous part of the property sought to be recovered or placing a copy under the entrance door of such premises; and in addition within one day after such . . . affixing or placement, by mailing to the respondent both by registered mail or certified mail and by regular first class mail."

It is well established that the affidavit of a process server constitutes prima facie [*2]evidence of proper service (First Ave Owners Corp. v Riverwalk Garage Corp, 6 Misc 3d 439 (Civ Ct. NY Co. 2004) (citing Hinds v 2461 Realty Corp., 169 AD2d 629 (1st Dept 1991). Mere denial of receipt of service is insufficient to rebut the presumption of proper service created by a properly executed affidavit of service (Id. (citing De La Barrera v Handler, 290 AD2 2d 476 (2d Dept 2002)). A summary denial unaccompanied by "further probative facts" does not require a traverse hearing (American Sav. & Loan Assn. v Twin Eagles Bruce, 208 AD2d 446 (1st Dept 1994)).

The affidavit of service here indicates that service of the Notice of Petition and Petition was made upon the respondent at 590 East Third Street, Apartment 2L in Mount Vernon, on June 12, 2008 at 9:28 am via nail and mail service. The affidavit of service further indicates that two attempts at personal service of the Notice of Petition and Petition were made prior to resorting to conspicuous place service, one attempt on June 11, 2008 at 6:14 pm, and one attempt on June 12, 2008 at 9:28 pm. Moreover, the affidavit of service indicates that additional mailings (by both certified and regular first class mail) were completed the same day. The Court finds that the affidavit of service constitutes prima facie evidence of proper service of the petition. Respondent's conclusory denial is insufficient to rebut the presumption of proper service. Accordingly, the first branch of respondent's motion must fail.

Respondent further argues that the petition fails to comply with RPAPL 741 because of an incomplete and inadequate description of the premises. The respondent argues that the petition, by way of description only provides the address of the premises, not the character of the building, and therefore, should be dismissed.

The Court finds that this branch of the motion must fail. Paragraph 4 of the petition provides that the "premises from which removal is sought are described as follows: said premises being known as Apt. 2L @ 590 West 3rd Street, Mount Vernon New York 10553." Paragraph 9 further states that the premises have been "converted to cooperative ownership and respondent is the owner of the shares allocated to the apartment."The Court finds that the descriptions in the petition were specific enough to allow the Marshal or process serve to locate the premises without additional information (See 272 Sherman, LLC v Vasquez, 4 Misc 3d 370).

Respondent-tenant also argues that the petition must fail because it was signed by an attorney, not the landlord, and that, furthermore, said petition contained no reasoning for the attorney's verification or state that the verification was executed by a person authorized by the petitioner. Upon review of the petition, the Court finds that this branch of respondent's motion is without merit. Concerning the signing of a petition, there is no requirement in RPAPL §741 that there be any signature on the petition itself, let alone that the party in interest must sign or that his/her attorney is prohibited from signing the petition. (See Eisenhauer v. Sarrabia, NYLJ 9/23/98 p.26 (Dist. Ct. Nassau Co.) All that is required is proper verification (See RPAPL §741). The Court is satisfied with the verification attached to the petition, dated June 6, 2008, and signed by the petitioner's attorney Emanuela Lupa, Esq.. An attorney's verification of the petition upon information and belief based upon the books and records of the petitioner, as was the case here, is expressly allowed by RPAPL §741(4). Furthermore, and contrary to respondent's contention, an Authorization from the president of petitioner corporation, Marsha Durham, dated August 30, 2007, was attached to the [*3]Petition filed with the Court, as Exhibit B. The Authorization states in pertinent part that "590 East Third Street Owners Corp. . . hereby authorizes . . .Emanuela Lupu, Esq. to jointly and/or severally execute any an all notices relating to . . . the commencement of any summary proceedings." Accordingly, the Court finds that the petition was properly verified.

Finally, respondent argues that the alleged rent demand was not attached to the petition, and accordingly, the petition must be dismissed. Pursuant to RPAPL 711(2), a petitioner must make either a three day personal demand or serve a written demand on the tenant for rent alleged to be owed in order to maintain a summary proceeding; petitioner's failure to provide proof of a proper rent demand calls for dismissal of the action (Harris v Apolant, 5 Misc 3d 1009A (Dist Ct. Nassau Co. 2004)). The petition in this case alleges in paragraph "7" that "[s]aid rent has been duly demanded from the respondents since the same became due by service of a 3 day notice on respondent on May 27, 2008. Copies of the notices and affidavit of service are annexed hereto as Exhibit A." Here, however, petitioner only attached the affidavit of service for a Three Day Notice to the petition as Exhibit A. The actual notice, however, is not attached to the petition. Furthermore, petitioner failed to respond to the motion to dismiss and refute the respondent's moving papers that this omission requires dismissal of the petition. By failing to attach the rent demand to the papers, this Court finds that "[t]he landlord failed to meet the requirements of a nonpayment proceeding, which is either a demand for rent, or at least 3 days' written notice requiring payment of the rent due or possession of the premises (RPAPL 735, 711(2); Garvey v Calder, 7 Misc 3d 130A (2d Dept)). Accordingly, the motion to dismiss is granted, based upon petitioner's material noncompliance with the statute (See id; Matter of Pepe v Miller & Miller Consulting Actuaries, Inc., 221 AD2d 545 (2d Dept 1995); Harris v Apolan, supra ).

Petition dismissed.

This constitutes the Decision and Order of this Court.

The Court considered the following papers on this Motion: Notice of Motion, dated June 20, 2008; Affirmation of Lisa Sassone, Esq., dated June August 20, 2008; Affidavit of Christopher Hopkins, dated June 19, 2008.

Dated:October 7, 2008

Mount Vernon, New York

___________________________________

Hon. Adam Seiden

Associate City Judge of Mount Vernon

To:

Lisa Sassone, Esq.

Legal Services of the Hudson Valley

Attorneys for Respondent [*4]

90 Maple Avenue

White Plains, New York 10601

Emanuela Lupu, Esq.

Smith, Buss & Jacobs, LLP

Attorneys for Petitioner

733 Yonkers Avenue

Yonkers, New York 10704