                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


   PAN AM EQUITIES, INC., as Managing Agent for New York Plaza
      Residential, L.L.C., a New York limited liability company,
                   Plaintiff/Appellant/Cross-Appellee,

                                         v.

PARESH GOEL; USHA K. NAGIN, Defendants/Appellees/Cross-Appellants.

                              No. 1 CA-CV 14-0753
                                FILED 3-15-2016


            Appeal from the Superior Court in Maricopa County
                           No. CV2013-000035
                The Honorable David O. Cunanan, Judge

                       REVERSED AND REMANDED


                                    COUNSEL

Hammerman & Hultgren, P.C., Phoenix
By Stanley M. Hammerman, Allan R. Draper, Stephanie A. Webb
Counsel for Plaintiff/Appellant/Cross-Appellee

Cheifetz Iannitelli Marcolini, P.C., Phoenix
By Claudio E. Iannitelli, Jacob A. Kubert
Counsel for Defendants/Appellees/Cross-Appellants
                        PAN AM v. GOEL/NAGIN
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Donn Kessler joined.


W I N T H R O P, Judge:

¶1             Pan American Equities, Inc. (“Pan Am”) appeals the superior
court’s order granting summary judgment for Paresh Goel and Nasha
Nagin (“the Goels”), and the Goels cross-appeal the superior court’s award
of attorneys’ fees and costs in an amount less than originally requested. For
the following reasons, we reverse the entry of summary judgment and
remand for further proceedings consistent with this decision.

                FACTS AND PROCEDURAL HISTORY

¶2            The Goels entered a residential lease with Pan Am for an
apartment in Manhattan, New York, for $3100 a month. The term of that
lease ran from August 2010 through September 2011. In January 2011,
however, the Goels found employment in Arizona and notified Pan Am of
their intent to terminate the lease early. Pan Am offered an early
termination of the lease obligation in exchange for payment of $12,400. The
Goels did not accept the offer and, without Pan Am’s approval as required
by the lease, found two persons to sublease the apartment. The Goels
provided Pan Am with two weeks’ notice that they would vacate the
premises and that the subleasees would move in the same day. On that
day, Pan Am refused to grant the subleasees entry to the apartment
building; the apartment was left vacant for the remaining duration of the
lease.

¶3            In May 2011, Pan Am filed a Notice of Petition and Petition
with the New York City Housing Court—part of the Civil Court of the New
York City (the “Civil Court”)—to recover possession of the apartment and
the back rent owing as of the time of the filing. The Goels were not served
personally; instead, the process server utilized a permissible form of
alternative service, and affixed the Notice of Petition and Petition to the
apartment door and mailed copies to the Goels. The Goels did not file an
answer or otherwise defend; accordingly, Pan Am filed a notice with the
court and requested entry of a default judgment, waiving its right to
“additional” back rent “without prejudice.” Using a standard court form,


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                        PAN AM v. GOEL/NAGIN
                          Decision of the Court

the Civil Court entered judgment for Pan Am, granting Pan Am possession
of the apartment and filling “$0.0” in the blank on the form for the amount
of money damages (“New York Judgment”).

¶4            In 2012, Pan Am initiated this action in Arizona to recover the
rent owing for the balance of the lease term, including the back rent owed
at the time of the New York Judgment. The Goels moved for summary
judgment, arguing Pan Am’s complaint was barred by the New York
Judgment under principles of comity and the doctrine of claim preclusion
and, alternatively, on the basis that Pan Am had failed to mitigate its
damages. The superior court granted the motion, and entered a final
judgment that also awarded the Goels their costs and a portion of their
requested attorneys’ fees.

¶5            Pan Am timely appealed; the Goels timely cross-appealed.
We have appellate jurisdiction pursuant to the Arizona Constitution,
Article 6, Section 9; and Arizona Revised Statutes (“A.R.S.”) sections 12–
120.21(A)(1), 12-2101(A)(1).1

                                 ANALYSIS

       I.     Summary Judgment

¶6            On appeal, Pan Am argues the superior court erred in
granting summary judgment for the Goels because there is a genuine issue
of material fact as to whether the New York court had adjudicated the claim
of back rent damages, and as to whether Pan Am owed any duty to mitigate
after the Goels’ breach of the lease.

¶7             We review a trial court’s grant of summary judgment on the
basis of the record made in the trial court, but determine de novo whether
the entry of summary judgment was proper. Modular Mining Sys., Inc. v.
Jigsaw Techs., Inc., 221 Ariz. 515, 518, ¶ 9, 212 P.3d 853, 856 (App. 2009). In
determining whether the entry was proper, we apply the same standard the
trial court uses in ruling on a summary judgment motion. Id. “The court
shall grant summary judgment if the moving party shows that there is no
genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law.” Ariz. R. Civ. P. 56(a); accord Orme School v.
Reeves, 166 Ariz. 301, 305, 802 P.2d 1000, 1004 (1990). We review a trial
court’s decision whether to recognize the validity of another state’s

1     We cite the current version of all applicable statutes unless revisions
material to this decision have occurred since the relevant events.



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                          Decision of the Court

judgment for an abuse of discretion. Oyakawa v. Gillett, 175 Ariz. 226, 229,
854 P.2d 1212, 1215 (App. 1993) (stating judgment by a sister state is
presumed valid).

¶8             We start our analysis by noting the following facts and
reasonable inferences from those facts: Pan Am chose to file suit in the Civil
Court, and chose in that action to not only seek recovery of possession of
the leased premises, but also to recover back rent owed by the Goels. The
record does not contain any information to suggest that Pan Am or its duly
appointed agent did not choose its mode of service of process, i.e., the
“conspicuous-place” service identified above. Pan Am notified the court of
the Goels’ failure to timely respond, and affirmatively asked that the Civil
Court enter a judgment by default. By inference, that request asked the
court to enter judgment in favor of Pan Am on all of the claims asserted and
to award the relief requested in its complaint. The notice that counsel for
Pan Am filed with the court did indicate it was waiving the right to seek
“additional” back rent “without prejudice.” Pan Am could have provided
a form of judgment along with its request, but there is no indication in the
record that it did so. The court’s judgment, on its face, not only awarded
possession, but also resolved the money damages claim in the complaint by
entering the amount of “$0.0.” There is nothing in the record to indicate
that Pan Am did not receive a copy of the court’s signed judgment shortly
after it was entered. Yet Pan Am did not notify the court of any purported
error or seek to modify the judgment to substitute language indicating that
the court was not resolving or could not resolve the back rent damages
claim without personal service on the Goels. Similarly, Pan Am could have
appealed the Civil Court’s entry of $0.0 as damages and argued to the New
York appellate court that the Civil Court’s entry of $0.0 as damages was
improper as a matter of law, or not supported by the record, but did not do
so.

¶9              Pan Am now contends New York procedural law does not
allow the Civil Court to do what Pan Am explicitly asked that court to do,
i.e., awarding money damages against defendants who received alternative
service of a complaint. Pan Am argues, therefore, that the Civil Court
lacked jurisdiction to enter the zero damage award and, accordingly, claim
preclusion does not apply. The Goels contend that the procedural and case
law in New York is inconsistent at best, that the better reasoned New York
cases indicate that the Civil Court did have authority and jurisdiction to
consider and resolve the money damages claim and, having done so, that
court’s final judgment is entitled to not only full faith and credit in Arizona,
but also constitutes the type of adjudication that triggers claim preclusion.



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                        PAN AM v. GOEL/NAGIN
                          Decision of the Court

¶10           The Arizona superior court agreed with the Goels, and we
agree to a point. Pan Am controlled the nature and manner in which it
sought affirmative relief in the Civil Court. It chose to include a damages
claim for the two months’ back rent then owing. It affirmatively asked the
Civil Court to enter judgment on all claims, including the damages claim.
And, it received a judgment on its damages claim. It chose not to directly
challenge the award it received; instead, Pan Am now seeks to collaterally
attack the validity of the New York judgment. If Pan Am was unhappy
with that judgment amount, or believed that court did not have jurisdiction
to consider the issue, it had a remedy by appeal.

¶11            With these facts, and on this record, we will not attempt to
parse and harmonize arguably conflicting decisions from the various New
York appellate courts arising out of eviction actions. Suffice to say, the
following New York decisions support the procedure of considering and
awarding money damages where the manner of service on the absent
tenants is merely “substituted” or “conspicuous-place” service rather than
by personal delivery of the summons and complaint.2 See N.Y. Civil
Practice Law and Rules (“CPLR”) § 308 (permitting service of a natural
person through alternative service, e.g., substituted service or duly diligent
conspicuous-place service); RPAPL § 735 (permitting substituted or
conspicuous-place service); Avgush v. Berrahu, 847 N.Y.S.2d 343, 347 (N.Y.
App. Term [9th & 10th Dists., 2nd Dept.] 2007) (holding the court has
jurisdiction to enter judgment on rent owing against a tenant if the tenant
was served with substituted service or duly diligent conspicuous-place
service, although the tenant was not personally served); Dolan, 753 N.Y.S.2d
at 703 (holding alternative service, such as substituted or duly diligent
conspicuous-place service, also confers personal jurisdiction to the court to
enter judgment on rent owing against a tenant even if the tenant was not
personally served because such alternative service meets the statutory

2      “Substituted” service, or “leave and mail,” consists of a process
server’s delivering the Notice of Petition and Petition to a person of suitable
age and discretion who resides or is employed at the property sought to be
recovered, and afterwards mailing copies of the petition to the respondent
of the petition. Real Property Actions and Proceedings Law (“RPAPL”)
§ 735(1); Dolan v. Linnen, 753 N.Y.S.2d 682, 684–85 (N.Y. Civ. Ct. [2nd Dist.,
2nd Dept.] 2003). “Conspicuous-place” service, or “nail and mail,” is
effected when a process server affixes a copy of the Notice of Petition and
Petition on a conspicuous part of the property sought to be recovered or
places a copy under the entrance door of such premises, and afterwards
mails copies of the petition to the respondent. RPAPL § 735(1); Dolan, 753
N.Y.S.2d at 684.

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                          Decision of the Court

requirements on personal service under CPLR § 308); cf. In re McDonald, 233
N.Y.S. 368 (N.Y. App. Div. [4th Dept.] 1929); but see also Oppenheim v. Spike,
437 N.Y.S.2d 826, 828 (N.Y. App. Term [1st Dept.] 1980) (finding the
judgment on rent arrears against the tenant a nullity because the tenant was
not personally served, or served by substituted or conspicuous-place service).

¶12           Applying this law, the Civil Court did, in fact, have the
authority to consider and resolve the damages claim raised in the complaint
even where service of process on the defendants was effected by substituted
or conspicuous-place service. The trial court in Arizona was well within its
discretion in recognizing the validity of the New York Judgment and in
determining as a matter of law that Pan Am’s claim for the back rent as
detailed in its complaint was precluded by the valid and final judgment
entered by the Civil Court.

¶13           This analysis does not resolve the rental obligation remaining
under the lease and those damages not alleged or requested in the New
York complaint. In order for claim preclusion to apply, the claim needs to
have been adjudicated or capable of being adjudicated in the earlier action.
Peterson v. Newton, 232 Ariz. 593, 595, ¶ 5, 307 P.3d 1020, 1022 (App. 2013).
Here, the Goels conceded at oral argument that only the two months’ of
back rent owing at the time the complaint was filed, was actually
adjudicated by the New York court in its judgment. The five months’ rental
obligation remaining under the lease was not adjudicated by the judgment,
and therefore is not entitled to claim preclusion.

¶14           On remand, the issues to be resolved are Pan Am’s
entitlement to collect those five months’ arrears, plus reasonable costs of
suit, and whether the Goels’ affirmative defense that Pan Am failed to
mitigate its damages should serve to eliminate or reduce any sum owing.

       II.    The Goels’ Cross-Appeal on Attorneys’ Fees

¶15            The Goels contend the trial court abused its discretion in not
awarding all the attorneys’ fees requested below. In light of our decision
on the merits of the appeal, we vacate the attorneys’ fees award entered by
the trial court, without prejudice to the trial court reconsidering any such
fee award once a ruling has been made on the merits of Pan Am’s back rent
damages claim.

       III.   Fee Requests on Appeal

¶16           Both parties request an award of fees on appeal. In the
exercise of our discretion, we deny each party’s request, without prejudice


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                       PAN AM v. GOEL/NAGIN
                         Decision of the Court

to the trial court considering and including fees incurred on appeal in any
fee award it ultimately enters relative to the merits. Subject to compliance
with Rule 21, ARCAP, we award Pan Am its reasonable costs incurred on
appeal.

                             CONCLUSION

¶17           The superior court’s ruling granting summary judgment for
the Goels is reversed, and this matter remanded for further proceedings
consistent with this decision.




                                  :ama




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