Barker v. Cruz, 2022-50397

CourtNew York Civil Court
Writing for the CourtSHORAB IBRAHIM, J.
PartiesDenzil Barker, Petitioner, v. Irene Cruz, Respondent-Tenant, and John Doe 1, John Doe 2, Jane Doe 1, & Jane Doe 2, Respondents-Undertenant.
Decision Date13 May 2022
Docket Number2022-50397,L & T Index 312920-2021

Denzil Barker, Petitioner,
v.

Irene Cruz, Respondent-Tenant,

and John Doe 1, John Doe 2, Jane Doe 1, & Jane Doe 2, Respondents-Undertenant.

No. 2022-50397

L & T Index No. 312920-2021

Civil Court of the City of New York, Bronx County

May 13, 2022


Unpublished Opinion

Attorneys for Respondent Irene Cruz: Bronx Legal Services, By Heather McLinn, Esq.

For Petitioner: Evan Rogers, Esq.

SHORAB IBRAHIM, J.

RECITATION, AS REQUIRED BY CPLR 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION BY THE PETITIONER TO VACATE THE ERAP STAY AND FOR SUMMARY JUDGMENT AND CROSS-MOTION BY RESPONDENT FOR LEAVE TO FILE AN ANSWER AND TO DISMISS THE PROCEEDING: NYSCEF DOCS. No. 11-30

UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:

HISTORY AND PROCEDURAL POSTURE

For the purposes of the within motion and cross-motion the relevant history of this case is as follows: Petitioner commenced this proceeding, after expiration of a 90-day termination notice, to regain possession of the 1st floor apartment at 3303 Fenton Avenue, Bronx, NY 10469 (the subject premises). The respondent applied for the Emergency Rental Assistance Program (ERAP) on or about July 16, 2021. The application, according to the respondent, was provisionally approved on or about November 16, 2021. The petition herein does not seek arrears or use and occupancy and the petitioner will not participate in the ERAP program because, according to petitioner, rent is legally uncollectible and he does not wish to extend the tenancy as he needs the premises for family use.

Petitioner now moves to vacate the ERAP stay and for summary judgment in the absence of an answer. Respondent cross-moves seeking leave to file an answer and for dismissal on several grounds.

DISCUSSION

For obvious reasons, the court must render a decision on the respondent's cross-motion first.

Answer

The motion for leave to file an answer is granted. This portion of respondent's motion is unopposed. (see Site 13 Apartment Owners, LLC v Miles, 26 Misc.3d 132 (A), 2010 NY Slip Op 50060(U) [App Term, 1st Dept 2010]). Answers in holdover proceedings are due, pursuant to RPAPL § 743, at the time the petition is to be heard. This provision has been interpreted to mean that the time to answer is extended by adjournment unless arrangements to the contrary have been made. (see Crotona Parkway Apts. HDFC v Depass, 68 Misc.3d 1226 (A), 2, 2020 NY Slip Op 51074(U) [Civ Ct, Bronx County 2020]). In any event, the alleged "late" filing of the answer, which includes potentially meritorious defenses, does not prejudice petitioner at this stage of the litigation. (see Jacobson v McNeil Consumer Specialty Pharmaceuticals, 68 A.D.3d 652, 654-655, 891 N.Y.S.2d 387 [1st Dept 2009] (prejudice does not simply occur because a party is exposed to greater liability or must expend additional time preparing its case). [1]

As such, the proposed answer (NYSCEF Doc. 24) is deemed served and filed.

Improper Service of Process

The petition and notice of petition, according to the affidavit of service, were served by conspicuous place service (aka "nail and mail") after attempts on November 16, 2021 at 1:31 PM, November 17, 2021 at 6:08 PM and November 18, 2021 at 9:33 AM. (see NYSCEF Doc. 8). [2]

There is no dispute that under the law at the time (see Part C, Subpart A, Ch. 417 of the Laws of 2021), petitioner could only resort to nail-and-mail service after attempting personal service with "due diligence." "Due diligence" is not defined by statute and this state's courts have not established a definition. In other words, there is no rigid standard and whether due diligence has been exercised is determined on a case-by-case basis. (see Barnes v City of New York, 51 N.Y.2d 906, 907, 415 N.E.2d 979 [1980] ("Indeed, in determining the question of whether due diligence has been exercised, no rigid rule could properly be prescribed."); Brafman & Associates, P.C. v Balkany, 190 A.D.3d 453, 139 N.Y.S.3d 199 [1st Dept 2021] (There are no rigid standards governing due diligence requirement for substituted service); Mid-Island Mortgage Corp. v Drapal, 175 A.D.3d 1289, 1290, 108 N.Y.S.3d 190 [2nd Dept 2019]; Greene Major Holdings, LLC v Trailside at Hunter, LLC, 148 A.D.3d 1317, 1320, 49 N.Y.S.3d 769 [3rd Dept 2017]).

Respondent argues that by failing to attempt service on a weekend or to ascertain respondent's whereabouts, due diligence was not exercised.

In the First Department, the courts have repeatedly found that three (3) attempts at service, made at different times and on different days, before resorting to nail-and-mail service, establishes prima-facie proof of proper service under the due-diligence standard. (see Hochhauser v Bungeroth, 179 A.D.2d 431, 578 N.Y.S.2d 170 [1st Dept 1992] (Three attempts to serve defendant at his home made during various hours of the day were sufficient to establish due diligence so as to permit substitute service.); Brown v Teicher, 188 A.D.2d 256, 590 N.Y.S.2d 452 [1st Dept 1991] (Three attempts at defendant's home at diverse times); Ayala v Bassett, 57 A.D.3d 387, 870 N.Y.S.2d 261 [1st Dept 2008]; HSBC Bank USA, N.A. as Trustee for Registered Holders of Renaissance Equity Loan Asset-Backed Certificates, Series 2007-03 v Hanchard, 170 A.D.3d 599, 97 N.Y.S.3d 67 [1st Dept 2019]; compare Bel Air Leasing LP v Johnston, 73 Misc.3d 809, 810, 157 N.Y.S.3d 346 [Civ Ct, Kings County 2021] (finding that the "Second Department has imposed a requirement that a process server make 'genuine inquiries about the defendant's whereabouts and place of employment'"), quoting Estate of Waterman v Jones, 46 A.D.3d 63, 66 [2nd Dept 2007]).

Furthermore, weekend attempts are not required. (see Lara v 1010 E. Tremont Realty Corp., 205 A.D.2d 468, 614 N.Y.S.2d 6 [1st Dept 1994] (Three weekday attempts at home at diverse times); Friedman v Telesco, 253 A.D.2d 846, 678 N.Y.S.2d 364 [2nd Dept 1998] (Three consecutive weekday attempts at diverse times); Finkelstein Newman Ferrara LP v Manning, 35 Misc.3d 130 (A), 1, 2012 NY Slip Op 50643(U) [App Term, 1st Dept 2012] (Three weekday attempts, including at 7:30 PM, when a working person might expect to be home constitutes due diligence prior to nail-and-mail service); Brafman & Associates, P.C. v Balkany, 190 A.D.3d at 453 (Attempts made at various times on a Monday, Wednesday and Friday). [3]

This is not to say that inquiry by the process server might not be required in certain circumstances. In Board of Managers of 50 West 127th Street Condominiums v Kidd, due diligence was rebutted when the defendant presented unopposed evidence that the plaintiff knew of her...

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