Barker v. Cruz

• Citation: 75 Misc.3d 1206 (A),167 N.Y.S.3d 382 (Table)
• Decision Date: 13 May 2022
• Docket Number: L & T Index No. 312920-2021
• Parties: Denzil BARKER, Petitioner, v. Irene CRUZ, Respondent-Tenant, and John Doe 1, John Doe 2, Jane Doe 1, & Jane Doe 2, Respondents-Undertenant.
• Court: New York Civil Court

75 Misc.3d 1206 (A)

167 N.Y.S.3d 382 (Table)

Denzil BARKER, Petitioner,

v.Irene CRUZ, Respondent-Tenant, and John Doe 1, John Doe 2, Jane Doe 1, & Jane Doe 2, Respondents-Undertenant.

L & T Index No. 312920-2021

Civil Court, City of New York, Bronx County.

Decided on May 13, 2022

Attorneys for Respondent Irene Cruz: Bronx Legal Services, By Heather McLinn, Esq. [hmclinn@lsnyc.org]

For Petitioner: Evan Rogers, Esq. [evan@evanrogerslaw.com]

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 AD3d 652, 654-655, 891 NYS2d 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 NY2d 906, 907, 415 NE2d 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 AD3d 453, 139 NYS3d 199 [1st Dept 2021] (There are no rigid standards governing due diligence requirement for substituted service); Mid-Island Mortgage Corp. v Drapal , 175 AD3d 1289, 1290, 108 NYS3d 190 [2nd Dept 2019] ; Greene Major Holdings, LLC v Trailside at Hunter, LLC , 148 AD3d 1317, 1320, 49 NYS3d 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 AD2d 431, 578 NYS2d 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 AD2d 256, 590 NYS2d 452 [1st Dept 1991] (Three attempts at defendant's home at diverse times); Ayala v Bassett , 57 AD3d 387, 870 NYS2d 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 AD3d 599, 97 NYS3d 67 [1st Dept 2019] ; compare Bel Air Leasing LP v Johnston , 73 Misc 3d 809, 810, 157 NYS3d 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 AD3d 63, 66 [2nd Dept 2007] ).

Furthermore, weekend attempts are not required. (see Lara v 1010 E. Tremont Realty Corp. , 205 AD2d 468, 614 NYS2d 6 [1st Dept 1994] (Three weekday attempts at home at diverse times); Friedman v Telesco , 253 AD2d 846, 678 NYS2d 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 AD3d 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 travel and work schedule. ( 169 AD3d 432, 94 NYS3d 27 [1st Dept 2019] ). To properly challenge the facially sufficient affidavit of service present here, it was incumbent on the respondent to come forth with evidence that the petitioner was required to do something more. (see Ayala v Bassett , 57 AD3d 387 [Affidavit of service alleging three attempts at service at residence at various times "constituted prima facie evidence of proper service," shifting the burden to the respondent "to offer an affidavit or other documentary evidence challenging the validity of the attempted service."]).

Of course, there will also be times where a petitioner is expected to do more in order to meet the due diligence standard. In an illegal sublet holdover, for example, a petitioner might be required to further investigate a respondent's actual abode or business address. (see e.g. 63 West LLC v Bicher , 74 Misc 3d 282, 285-286, 160 NYS3d 557 [Sup Ct, New York County 2021] ).

Here, respondent's affidavit says nothing about the service attempts and makes no claims that the petitioner had any information which would trigger additional inquiry. (see Walkes v Benoit , 257 AD2d 508, 684 NYS2d 533 [1st Dept 1999] ("In order to rebut an affidavit of service a defendant must personally contest the service on motion.").

For these reasons, the court finds that service of the notice of petition and petition was proper and the branch of the motion seeking dismissal based on failure to exercise due diligence is denied.

"Window-Period" Payment(s) & Vitiation

In this Department, the acceptance of rent during the "window period," defined as the time between termination of a tenancy and commencement of a proceeding, (see Georgetown Unsold Shares, LLC v Ledet , 130 AD3d 99, 100, 12 NYS3d 160 [2nd Dept 2015] ), may require dismissal of the proceeding. (see 205 East 78th St Assoc v Cassidy 192 AD2d 479, 598 NYS2d 699 [1st Dept 1993] ; 184 West 10th Corp v Westcott , 8 Misc 3d 132[A], 2005 NY Slip Op 51150[U] [App Term, 1st Dept 2005] ). Other cases denying dismissal on these grounds turn on whether the landlord "intended to relinquish a known right." ( Beacon 109 223-225 LLC v Mon Sheng Wu , 32 Misc 3d 140[A], 2011 NY Slip Op 51570[U] [App Term, 1st Dept 2011] ; PCV/ST LLC v Finn , 2003 WL 21203337, 2003 NY Slip Op 50897(U) [App Term, 1st Dept 2003] ; West Waverly Equities v Leiff , 190 Misc 2d 281, 737 NYS2d 762 [App Term, 1st Dept 2001] ).

Although these cases involve acceptance in the window period prior to commencement of non-primary residence holdovers, the reasoning has been extended to other types of holdovers. (see Sebco Hous. Dev. Fund Co., Inc. v Acosta , 66 Misc 3d 147(A), 2020 NY Slip Op 50236(U) [App Term, 1st Dept 2020] (Nuisance holdover); 170 East 77th 1 LLC v Berenson , 12 Misc 3d 1017, 1020-1021, 820 NYS2d 693 [Civ Ct, New York County 2006] (lease expired in unregulated unit)).

Here, respondent's affidavit says almost nothing to support the vitiation argument. However, the motion includes a purported DSS printout, containing information for "shelter" checks from January 2021 through March 2022. In response, petitioner states "to the best of my recollection the affidavit of service of the Petition was filed on November 19, 2021 and I did go to the bank to deposit moneys AFTER that date not during the ‘window period.’ "⁴

The...