Opinion
1612009.
08-25-2017
51 MIDDLE ROAD LLC, Petitioner v. Rose MYERS and Nicholas Braldt, Respondents.
Vincent J. Catalano Jr., Catalano & Carpenter LLP, Poughkeepsie.
Vincent J. Catalano Jr., Catalano & Carpenter LLP, Poughkeepsie.
ROBERT J. GAGEN, J. This case has been returned to this court by virtue of a Decision and Order from Columbia County Court. issued by the Hon. Charles M. Tailleur. The appellate court directed this court to issue a written decision, including an analysis as to whether the entry of a default money judgment is barred due to the manner in which process was served, as well as, whether petitioner satisfied the due diligence requirement.
Hereinafter "Decision and Order of June 26, 2017"
BACKGROUND
A notice of petition and petition to recover property for nonpayment of rent was filed in the Greenport Town Court under New York RPAPL article 7 against the tenants, Rose Myers and Nicholas Braldt. The petition sought an immediate warrant of eviction and a money judgment in the amount of $4603.17 and attorneys fees in the amount of $650 as well as costs and disbursements of the proceeding.
Respondents neither answered nor appeared in court on January 9, 2017, the return date. Petitioner's attorney sought a money judgment as well as an immediate warrant of eviction. The court questioned petitioner's entitlement to the money judgment and petitioner offered to submit legal authority to support the proposition that it was entitled to a money judgment despite lack of personal service. Thereafter petitioner's counsel submitted a proposed judgment and warrant together with copies of two miscellaneous decisions. This court modified the proposed judgment by striking out the relief awarding a money judgment but otherwise granted the relief sought by the petitioner and returned the same with a brief letter. Petitioner appealed that determination to the Columbia County Court. The Decision and Order of June 26, 2017 followed.
LEGAL DISCUSSION
Respondents in this action were served with petitioner's nonpayment petition by conspicuous "nail and mail" service pursuant to RPAPL § 735(1). Conspicuous "nail and mail" service is the "least desirable" of the 3 service methods available under RPAPL § 735(1) because when used, there is a reduced likelihood that a respondent will actually receive process. Eight Associates v. Hynes, 102 A.D.2d 746, 476 N.Y.S.2d 881 (1st Dept.1984), aff'd 65 N.Y.2d 739, 492 N.Y.S.2d 15, 481 N.E.2d 555 (1985). See also Serraro v. Staropoli, 94 A.D.3d 1083, 1094, 943 N.Y.S.2d 201 (2d Dept.2012). For that reason, in summary nonpayment proceedings, New York courts have required sufficient number of attempts to serve process on a tenant personally, before resorting to conspicuous service.
To obtain repossession of property, a landlord must demonstrate "reasonable application" in its prior attempts to serve process on tenant personally before resorting to conspicuous "nail and mail" service. RPAPL § 735(1) ; Eight Associates v. Hynes supra; Brooklyn Heights Realty Co. v. Gliwa, 92 A.D.2d 602, 459 N.Y.S.2d 793 (2d Dept.1983). The "reasonable application" standard requires, at a minimum, that at least one attempt to serve a tenant personally at his or her residence must be made during working hours and at least one attempt must be made during hours when a working person would reasonably be expected to be at home. Empress Manor Apartments v. Levenson, 115 A.D.2d 586, 496 N.Y.S.2d 248 (2d Dept.1985) ; Martine Associates LLC v. Minck, 5 Misc.3d 61, 62, 785 N.Y.S.2d 648 (App.T. 9th and 10th Judicial Districts 2004); Tinker Ltd. Partnership v. Berg, 26 Misc.3d 1214(A), 2010 WL 309019 (Dist. Ct. Nassau County 2010).
Courts have held, however, that to obtain a money judgment against a defaulting tenant following conspicuous "nail and mail" service, attempts to serve must be more extensive than those required to obtain possession of premises. Eight Associates v. Hynes, 102 A.D.2d at 746, 476 N.Y.S.2d 881 ; Brooklyn Heights v. Gliwa, 92 A.D.2d at 602, 459 N.Y.S.2d 793 ; County of Nassau v. Witkowski, 34 A.D.3d 414, 415, 824 N.Y.S.2d 153 (2nd Dept.2006) ; Hoskob Associates LLC v. Spanos, 49 Misc.3d 1207(A), 2015 WL 5946036 (N.Y.C.Civ.Ct.2013). Indeed courts have held that the due diligence requirement must be "strictly observed" because of the reduced likelihood that process will actually be received. Greene Manner Holdings LLC v. Trailside at Hunter LLC 148 A.D.3d 1317, 1320, 49 N.Y.S.3d 769 (3d Dept.2017) To determine whether prior attempts to personally serve process satisfy the due diligence requirement, courts are told to focus not on the quantity of the attempts, but rather on their quality. McSorley v. Spear, 50 A.D.3d 652, 653, 854 N.Y.S.2d 759 (2d Dept.2008), lv. denied 10 N.Y.3d 715, 862 N.Y.S.2d 336, 892 N.E.2d 402 (2008) ; Greene Manner Holdings LLC v. Trailside at Hunter LLC, supra, at 1321, 49 N.Y.S.3d 769. Appellate cases have held that personal service attempts prior to utilizing conspicuous service must comply with at least two requirements to demonstrate due diligence.
1. A minimum of three personal service attempts are required, with at least two attempts on dates and times when it can reasonably be expected that the person to be served will not be at work or in transit. Greene Manner Holdings LLC v. Trailside at Hunter LLC, supra, at 1320–21, 49 N.Y.S.3d 769 ; Kader v. Kader, 132 A.D.3d 1376, 1377, 18 N.Y.S.3d 247 (4th Dept.2015) ; Serraro v. Staropoli 94 A.D.3d at 1085, 943 N.Y.S.2d 201 ; Austin v. Tri–County Memorial Hospital, 39 A.D.3d 1223, 1224, 834 N.Y.S.2d 419 (4th Dept.2007) ; County of Nassau v. Letosky, 34 A.D.3d at 415, 824 N.Y.S.2d 153 ; O'Connell v. Post, 27 A.D.3d 630, 631, 811 N.Y.S.2d 441 (2nd Dept.2006)
2. Additionally, due diligence requires process servers, before resorting to conspicuous service, to make "genuine inquiries" to ascertain the parties place of work so that the party can be served, or must attempt to talk to neighbors to find out where the party might be found. Greene Manner Holdings LLC v. Trailside at Hunter LLC, supra, at 1321, 49 N.Y.S.3d 769 ; Kader v. Kader, supra, at 1376, 18 N.Y.S.3d 247 ; Gurevitch v. Goodman, 269 A.D.2d 355, 356, 702 N.Y.S.2d 634 (2d Dept.2000) ; Estate of Waterman v. Jones, 46 A.D.3d 63, 67, 843 N.Y.S.2d 462. Where a party seeking a default money judgment following conspicuous service of process fails to demonstrate such inquiries, due diligence is not satisfied. Greene Manner Holdings, LLC v. Trailside at Hunter, LLC, supra, at 1321, 49 N.Y.S.3d 769 ; Kader v. Kader, supra, at 1376, 18 N.Y.S.3d 247 ; Prudence v. Wright, 94 A.D.3d 1073, 1074, 943 N.Y.S.2d 185 (2d Dept.2012) ; Serraro v. Staropoli, 94 A.D.3d at 1085, 943 N.Y.S.2d 201 ; Estate of Waterman v. Jones, supra at 67, 843 N.Y.S.2d 462.
An examination of the affidavit of service submitted upon each of the respondents reveals attempts at service on December 28, 2016 at 8:17 AM, December 29, 2016 at 5:45 PM and December 30, 2016 at 7:19 A M. The process server's affidavit is devoid of any indication that he made any inquiries, let alone genuine inquiries, to attempt to ascertain respondents whereabouts or places of work. This affidavit is devoid of any indication that he made any inquiries of neighbors to attempt to learn where respondent worked or where either of them might be found. The affidavit does not indicate that he asked petitioner where respondents worked. Additionally, no due diligence is demonstrated when attempts at service were made during normal business hours at times when he could reasonably be expected that a defendant was in transit to or from a place of employment. Greene Manner Holdings LLC v. Trailside Hunter LLC, 148 A.D.3d at 1320—1321, 49 N.Y.S.3d 769 ; Magalios v. Benjamin 160 A.D.2d 773, 554 N.Y.S.2d 61 (2d Dept.1990) ; Powell v. Anderson 34 Misc.3d 1237 (A), 2012 WL 762893 (Mt. Vernon City Ct.2012) ; Cornhill LLC v. Sposato 51 Misc.3d 840, 26 N.Y.S.3d 831 (Rochester City Court 2017) ; Hirt v. Goldthrite et al. (Monroe County Court unreported decision October 15, 2008).
Thus, this court concludes that the petitioner in this case has failed to meet its burden to establish due diligence under CPLR 308(4) or "genuine inquiries".
Petitioner's counsel was invited to offer additional evidence or information in support of it's claim than what it had previously supplied to demonstrate it was entitled to a money judgement, by letter dated July 14, 2017. By letter dated July 24, 2017, petitioner's counsel declined to offer any additional information)
In addition to the foregoing, a word must be added to the context in which these rules have been developed. Underlying all of these requirements is the simple notion of fundamental fairness and adequate notice. Mullane v. Central Hanover Bank & Trust Co. 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The need for such requirements is made all the more important when one considers the time within which respondents are obliged to answer in a summary proceeding Contrast that with CPLR 308(4), where the time to answer does not even start until 10 days after proof of service of the mailing and posting by affidavit is filed, and then an answer is due thirty days after service is complete. ( CPLR 320(a) )
RPAPL § 733(1)"the notice of petition and petition shall be served at least 5 and not more than 12 days before the time at which the petition is noticed to be heard".
Furthermore, unlike the monetary limitation associated with a commencement of a conventional action to recover money in Justice Court ( Uniform Justice Court Act § 202, $3000), the amount of money that can be recovered in a money judgment in a summary proceeding is unlimited. ( § 204 UJCA ) The greater sum at stake, not to mention the risk of becoming homeless, all suggest the need to require petitioners to comply strictly with their obligations to make diligent attempts at personal service before resorting to conspicuous service of process. CONCLUSION
Petitioner's failure to sufficiently attempt personal service upon respondents prior to use of conspicuous service deprives this court of jurisdiction to enter a default money judgment against respondents. Harkless v. Reid 23 A.D.3d 622, 623, 806 N.Y.S.2d 214 (2d Dept.2005) ; Matter of McDonald, 225 A.D. 403, 233 N.Y.S. 368 (4th Dept.1929)
Petitioner's request for the entry of the default money judgment against respondents is denied.