1199 Housing Corp. v. Griffin

Citation136 Misc.2d 689,520 N.Y.S.2d 93
Parties1199 HOUSING CORPORATION, Petitioner, v. Iverson GRIFFIN, Respondent.
Decision Date24 June 1987
CourtNew York City Court

Fitzgerald & Cherson, Yonkers, for petitioner.

DIANE A. LEBEDEFF, Judge.

Approximately forty requests for default judgments have been presented in a series of non-payment proceedings, in which two process servers swear to attempts to serve, pursuant to Section 735 of the Real Property Actions and Proceedings Law, in high-rise buildings. One process server claimed such attempts at an average rate of one per three minutes, and the other generally an average of one per four minutes.

After considering whether the claimed feats are reasonable or possible--and giving weight to the claim that these process servers have reported this pace of work for a significant portion of their reported workday--several questions come to mind, paraphrased as follows: Faster than a speeding bullet? More powerful than a locomotive? Able to leap tall buildings in a single bound?

This consideration does raise two important legal issues: first, whether the service as claimed could be considered a proper attempt to serve under the "reasonable application" standard of Section 735(1) of the Real Property Actions and Proceedings Law, and second, what treatment should be accorded reports of service attempts which appear to have occurred with an unlikely rapidity. These inquiries arise because it is one of the functions of this court, as it reviews applications for default judgments to "check affidavits of service, and identify patterns of fraud which may become apparent in the course of dealing with large numbers of proceedings" as was noted by the Appellate Term, First Department, in Central Park Gardens, Inc. v. Ramos, NYLJ 4/9/84, p. 12, c. 6.

The Facts

The attempts to serve in these cases were performed with a piston-like perfect regularity at an astonishing speed. Thus, for example, part of one sequence commenced on the 27th floor; one minute later, on the 22nd floor; one minute later, on the 21st floor; two minutes later, on the 14th floor. The second attempts were in the same order with the same elapsed time between each attempt. The process server is Joe Duggins, license number 773930. Mr. Duggins was previously mentioned by Judge Edward Lehner in Leader House Assoc. v. Reyes, NYLJ 2/16/83, p. 13, c. 3 (Civ.Ct., N.Y.Co.), as a process server who had failed to find tenants at home to receive process in an unduly large percentage of his services.

The second process server had a slightly longer average elapsed time, with more variation in the length of time between services. Throughout, the same time lapse uniformly occurred as one compared, first, the two attempts to serve the same tenant, and second, the times between one apartment and the next one at which there was an attempt to serve, although there is one erratic time series one day. The second process server also twice seems to have reversed the use of a.m. and p.m. This process server is Howard Belfer, license number 778066.

Both process servers start service at 6 a.m. and work through the morning. Each also reports afternoon or evening activity.

"Reasonable Application" Under RPAPL § 735(1)

Service of process in default situations has become subject to closer review following the 1984 holding of the Appellate Division, First Department, in Eight Associates v. Hynes, 102 A.D.2d 746, 476 N.Y.S.2d 881, aff'd 65 N.Y.2d 739, 492 N.Y.S.2d 15, 481 N.E.2d 555 (1985), that a single attempt to serve during normal working hours on a weekday was not sufficient "reasonable application" under Section 735 of the Real Property Actions and Proceedings Law. Implementing that decision, trial courts have required where conspicuous place service is used that, on weekdays, one attempt be made during normal working hours, between 8 a.m. and 6 p.m., and a second in the morning hours between 6 a.m. and 8 a.m. or in the evening hours between 6 p.m. and 10:30 p.m. See Metropolitan Life Insurance Co. v. Scharpf, 124 Misc.2d 1096, 478 N.Y.S.2d 567 (Civ.Ct., N.Y.Co., 1984); N.Y.S. Housing Finance v. Fawcett, NYLJ 12/19/84, p. 19, c. 5 (Civ.Ct., N.Y.Co.).; and, Hammer v. Berke, NYLJ 2/4/85, p. 17, c. 4 (Civ.Ct., Queens Co.), with the latter refusing special consideration of "two fare" zones. See, generally, as to two attempts, Brooklyn Heights Realty Co. v. Gliwa, 92 A.D.2d 602, 459 N.Y.S.2d 793 (2nd Dept., 1983), and Mountbatten Equities v. Metheny, NYLJ 4/27/83, p. 13, c. 3 (Civ.Ct., N.Y.Co.). Under these standards, the one reported attempt to serve at 10:35 p.m. must be held to be improper.

While it is generally recognized that the "reasonable application" standard of RPAPL § 735(1) is less than the "due diligence" standard of CPLR § 308(4), there is no question that on each attempt to serve a process server must signal his or her presence at a door and await a response. Where a process server rings a door bell and waits several minutes before posting, service will be found proper. Arguments that more is required, such as use of a building's intercom system, will be rejected, as it was by the Appellate Term, First Department, in Parkchester Apartments Co. v. Hawkins, 111 Misc.2d 896, 447 N.Y.S.2d 194 (1981). The court reiterated the statement that a process server "may ring once (or twice if so moved), and if such mild, lawful efforts come to naught, he may proceed with posting and mailing...." quoting Coulston v. JKL Founding Corp., NYLJ 3/20/74, p. 17, c. 7, which in turn quoted Hospitality Enterprises v. Fuego Rest. Corp., NYLJ 6/5/80, p. 11, c. 4.

Where the process server does less, however, such as where process was posted on a door when the tenant was inside and not summoned by a ring or knock as in Lipman v. Salsberg, 107 Misc.2d 276, 278, 433 N.Y.S.2d 970 (Civ.Ct., N.Y.Co., 1980), service will be found to be improper. At a minimum, therefore, "reasonable application" requires a knock or a ring on a door, and waiting for a sufficient time to secure a response or determine there shall be no response. Further, if there is a response, the process server must ascertain whether the named respondent is absent before resorting to substituted service upon another. Smith v. Norton, 204 A.D. 248, 249, 197 N.Y.S. 373 (4th Dept., 1922), and 71 St. Associates v. Van Epps, NYLJ 4/26/83, p. 12, c. 2 (Civ.Ct., NY Co.).

In short, service of process is not a slapdash affair. There is every reason that service should be done carefully in landlord-tenant residential summary proceedings. The law already allows a simpler mode of service for such cases. The petitioner has an actual residence address and is not under the burden faced by other civil litigants. And, above all, saving a few minutes or some effort in a residential context is contemptible for cutting a corner or two might increase by even one whit the chance of an individual or a family joining the pool of human...

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