Bel Air Leasing LP v. Johnston

• Decision Date: 08 November 2021
• Docket Number: Index No. 302355/21
• Citation: 73 Misc.3d 809,157 N.Y.S.3d 346
• Parties: BEL AIR LEASING LP, Petitioner, v. Jennifer JOHNSTON, Respondents.
• Court: New York Civil Court

73 Misc.3d 809
157 N.Y.S.3d 346

BEL AIR LEASING LP, Petitioner,
v.
Jennifer JOHNSTON, Respondents.

Index No. 302355/21

Civil Court, City of New York, Kings County.

Decided on November 8, 2021

157 N.Y.S.3d 347

Michael Weisberg, J.

The following e-filed document listed by NYSCEF document numbers (motion no. 1) 6-10; 13-15 were read on this motion seeking entry of a judgment on default in a summary nonpayment eviction proceeding.

73 Misc.3d 810

The COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (L 2020, ch 381) changed the service requirements for the notice of petition and petition in summary eviction proceedings.¹ Pre-CEEFPA, service of process by "affix and mail" was permitted after attempts at personal service satisfying a "reasonable application" standard ( RPAPL 735 ). CEEFPA imposed a "due diligence" standard before permitting service of process to be made other than by personal service (L 2020, ch 381, part A, § 5[2] ["service of the notice of petition shall be made by personal delivery to the respondent, unless such service cannot be made with due diligence, in which case service may be made under section 735 of the real property actions and proceedings law"]). The question before the court is whether Petitioner's process server's three attempts at personal service, each made on a weekday at various times of the day, meets the "due diligence" requirement of CEEFPA. The court holds that it does not.

"Due diligence" is derived from CPLR § 308, which governs service of process upon a natural person in a civil action. That statute permits "affix and mail" service where service by delivery to the person to be served, or service upon a person of suitable age or discretion, cannot be made with "due diligence" ( CPLR § 308[4] ). The "due diligence" standard contrasts with the "reasonable application" standard contained in RPAPL 735 ; "reasonable application" requires less effort by the process server than "due diligence" (

73 Misc.3d 811

Brooklyn Heights Realty Co. v. Gliwa , 92 A.D.2d 602, 459 N.Y.S.2d 793 [2d Dept. 1983] ). Whichever standard is applied, service by "affix and mail" is the least desirable method service, when compared with in-hand or substitute service (see Eight Assoc. v. Hynes , 102 A.D.2d 746, 476 N.Y.S.2d 881 [2d Dept. 1984] ; see also e.g. Gurevitch v. Goodman , 269 A.D.2d 355, 702 N.Y.S.2d 634 [2d Dept. 2000] [noting reduced likelihood that process served by "affix and mail" will be...