417 East Realty Associates v. Ryan

Decision Date19 August 1981
Citation442 N.Y.S.2d 880,110 Misc.2d 607
CourtNew York City Court
Parties417 EAST REALTY ASSOCIATES, Petitioner-Landlord, v. Seward RYAN, Respondent-Tenant, Virginia Mason, Respondent-Occupant.

Steinberg & Siegel, Brooklyn (Samuel Steinberg, Brooklyn, of counsel), for petitioner.

Thacher, Proffitt & Wood (Paul V. Nunes and Dwight B. Demeritt, Jr., New York City, of counsel), for respondents.


To paraphrase the notorious Polly Adler: "when is a residential apartment not a residence?" This question is raised by a motion by respondent-tenant for summary judgment, pursuant to CPLR 3212, dismissing this holdover summary proceeding upon the ground that service was not made pursuant to the dictates of RPAPL 735.

Neither counsels' nor the Court's research has uncovered any reported decision concerning RPAPL service requirements upon a residential tenant who is living elsewhere to the knowledge of petitioner-landlord; thus, is not actually physically present in the apartment concerning which litigation is about to begin. Accordingly, this is a decision of apparent first impression.

In the underlying holdover proceeding, landlord alleges tenant has breached a substantial obligation of his tenancy by allowing the apartment to be occupied by persons who are not members of tenant's immediate family. Tenant avers that one Virginia Mason, his "fiancee, and Emily Ruth Ryan 17-month old daughter" are living in the apartment.


From the submitted papers, it is undisputed that tenant, from late August 1980 to January 29, 1981, was an admitted patient at the Hazelden Foundation, Center City, Minnesota, for "long-term medical treatment". Since then, he has been in Saint Joseph's Hospital, Saint Paul, Minnesota, "for additional treatment".

Tenant alleges, in late August and early September 1980, persons in the employ of his mother orally informed landlord's employees of tenant's Hazelden admission and of the Foundation's address and telephone number. By affidavit, tenant states that he received a lease renewal from landlord in September, addressed to him at Hazelden. Moreover, by letters to landlord, dated December 11 and 18, 1980 (prior and subsequent to service of the instant notice to cure), tenant's attorney requested that "you serve the petition directly on this office since Mr. Ryan is undergoing medical treatment in Minnesota." Such request was not honored.

This summary proceeding was instituted by service of process in early January 1981. The process server's affidavit alleges "substituted" service by posting the requisite papers upon the entrance door (January 7) and mailing (January 8) to tenant solely at the address in litigation in New York City.

Attorney's Affirmation

In support of the motion for summary judgment, tenant has submitted several affidavits and two memoranda of law. In opposition, landlord has presented two affirmations by its attorney and also two memoranda of law.

To the extent that landlord's attorney's affirmations attempt to allude to allegations of alleged factual matters, the submitted papers clearly indicate that he has no personal knowledge of the underlying facts. It has long been the rule in New York that an affidavit opposing a motion for summary judgment must indicate it is made by someone with the requisite personal knowledge (S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 342, 357 N.Y.S.2d 478, 313 N.E.2d 776 The affirmation of an attorney without such factual knowledge is of no probative value and cannot be sufficient to raise triable factual issues in opposition to a motion for summary judgment (Israelson v. Rubin, 20 A.D.2d 668, 247 N.Y.S.2d 85, aff'd 14 N.Y.2d 887, 252 N.Y.S.2d 90, 200 N.E.2d 774 Aetna Casualty & Surety Co. v. Schulman, 70 A.D.2d 792, 794, 417 N.Y.S.2d 77 GTE Sylvania v. Jupiter Supply Co., 51 A.D.2d 993, 994, 380 N.Y.S.2d 742 Davis v. Shelton, 33 A.D.2d 707, 304 N.Y.S.2d 722 DiSabato v. Soffes, 9 A.D.2d 297, 301, 193 N.Y.S.2d 184 CPLR 3212 Accordingly, his two affirmations are disregarded.

Moreover, the affirmation dated March 7, 1981, is unsigned and should be overlooked on that account (CPLR 2106; see also General Construction Law, secs. 12 and 36).

However, to the extent that these submitted papers raise issues of law, this decision is written.


RPAPL 735 prescribes the manner in which process shall be served in a summary proceeding. The statute provides, in pertinent part, that

service of the notice of petition and petition shall be made by personally delivering them ... or by delivering to and leaving personally with a person of suitable age and discretion ... or ... by affixing a copy ... 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 ... by mailing to the respondent ... (a) if a natural person, as follows: at the property sought to be recovered, and if such property is not the place of residence of such person and if the petitioner shall have written information of the residence address of such person, at the last residence address as to which the petitioner has such information ... (emphasis supplied).

It has been held that conspicuous "service by this method consists of two separate acts--one of affixing and the other of mailing ... service cannot be considered complete until both acts are done" (Furey v. Milgrom, 44 A.D.2d 91, 92, 353 N.Y.S.2d 508 [2nd Dept., 1974].


Landlord contends that the word "residence" in RPAPL 735 means the permanent home, not a temporary place of living. In order to change residence, landlord argues, an intent must accompany a factual act. Here, Seward Ryan considers himself a tenant in New York City where he intends to "reside with his fiancee and daughter as soon as the medical treatment is terminated" (Memorandum No. 1, p. 3). Since "tenant is in Minnesota solely for medical treatment" (Memorandum No. 2, p. 6), "has not shown an intention to make Minnesota his home at all. He is just there to be treated .... Clearly his intention is to return to New York, to the demised premises ..." (Memorandum No. 1, pp. 5-6). Thus, since his only residence within the meaning of RPAPL 735 is at the property sought in this proceeding, landlord concludes, service was proper.

In literature, Lewis Carroll had Humpty Dumpty scornfully engage in semantic falderal by defining terms: "when I use a word, it means just what I choose it to mean--neither more nor less" (Through the Looking Glass, chapter 6; see also George W. Clark and Ernest Walton, "Letters to the Editor", N.Y.L.J., November 18, 1980, p. 2, col. 6 and November 14, 1980, p. 2, col. 6). However, to interpret particular words used in a statute, a court should examine the enactment as a whole to discern the objectives, purpose and policy underlying the statute. The words used should be given their common and ordinary meaning--a rational definition which serves, rather than defeats, the ends intended by the Legislature (MVAIC v. Eisenberg, 18 N.Y.2d 1, 3, 271 N.Y.S.2d 641, 218 N.E.2d 524 56 NY Jur., Statutes, secs. 164-167). Thus, where possible, the statute should be construed to suppress the evils sought to be avoided and advance the remedies intended to be afforded (Lincoln First Bank v. Rupert, 60 A.D.2d 193, 400 N.Y.S.2d 618 56 NY Jur., supra, sec. 167).

In enacting regulations for service of process, the Legislature sought to avoid the evil of unintentional defaults occurring because of lack of notice of the proceedings; the remedy to be afforded is that notice be received of the start of lawsuits so that they can be litigated on their merits. The Legislature obviously intended that potential litigants receive as much notice as possible of the commencement of a lawsuit. In fact, it would be nearly impossible to give someone too much notice of the institution of litigation. If the party receiving notice decides not to act upon it, "let the chips fall as they may." However, the key factor is the giving of full and proper notice.

There are two types of premises as to which one may begin a summary proceeding--residential and commercial. At first glance, giving the word "residence" the definition landlord would give it, one could think a residential tenant would "reside" only at one locality. If this were so, the statute might apply only to a "natural person" commercial tenant, who does not (normally) "reside" at the place of business. The Legislature, desiring that such person receive notice of any commercial summary proceeding, decreed that when a landlord has written information of such tenant's residence, process must be mailed there in order for service to be complete. Thus, any purported service that does not include a mailing to such residence is fatally deficient, requiring dismissal of the petition (Klagsbrun v. Saunders, N.Y.L.J., June 21, 1979, p. 5, col. 3 at p. 6, col. 1 East 88th St. Corp. v. Thornhill, 84 N.Y.S.2d 794 Weise v. Gershman, 90 Misc.2d 799, 396 N.Y.S.2d 316 60 West 109th St. Corp. v. Taylor, 95 N.Y.S.2d 763 see Judd Estates v. Zimmerman, 127 N.Y.S.2d 68 [App.T., 1st Dept., 1953, n.o.r.]

If this "first glance" exposed the entire panorama, the Legislature could easily have limited this aspect of the statute to commercial tenancies. It is not so limited.

As with other words that people over the years have used interchangeably--although one is no synonym for the other (see Biskind, "Write It Right", N.Y.L.J., August 4, 1981, p. 2, col. 3)--landlord here has confused the words "residence" and "domicile". Black's Law Dictionary (4th Edition, p. 1473) states that "domicile" and "residence" are often

used as if they had the same meaning, but they are not identical terms, for a person may have two places of residence ... but only one domicile. Residence means living in a particular locality, but domicile means living in that...

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