Borg v. Feeley

• Decision Date: 23 June 2017
• Docket Number: No. 570243/17.,570243/17.
• Citation: 63 N.Y.S.3d 304 (Table)
• Parties: Edward BORG, Robert Becht, George Terranova & Carl Terranova, Co–Trustees, under will of Vincent Terranova, deceased, Petitioner–Landlord–Respondent, v. Thomas L. FEELEY, Respondent–Tenant–Appellant, and David Stewart, Respondent–Undertenant.
• Court: New York Supreme Court — Appellate Term

63 N.Y.S.3d 304 (Table)

Edward BORG, Robert Becht, George Terranova & Carl Terranova, Co–Trustees, under will of Vincent Terranova, deceased, Petitioner–Landlord–Respondent,

v.Thomas L. FEELEY, Respondent–Tenant–Appellant, and David Stewart, Respondent–Undertenant.

No. 570243/17.

Supreme Court, Appellate Term, First Department, New York.

June 23, 2017.

PER CURIAM.

Order (Erika M. Edwards, J.), dated November 18, 2016, reversed, with $10 costs, and the monetary award contained in the default final judgment is vacated.

In order to obtain a monetary recovery against a tenant who does not appear in a summary proceeding, a landlord must establish that the petition and notice of petition were served personally or that the process server used due diligence before resorting to conspicuous service (see Oppenheim v. Spike, 107 Misc.2d 55 [1980] ; see also Avgush v. Berrahu, 17 Misc.3d 85 [2007] [service must be effectuated in a manner that would be sufficient to support entry of a money judgment in a plenary action] ). Here, the affidavit of the process server indicates that, prior to resorting to conspicuous service, two attempts were made to personally serve tenant at the premises, one on a Friday at 6:45 A.M. and one on the following Monday at 1:40 P.M. Significantly, the affidavit of service does not describe any efforts to ascertain tenant's whereabouts, work schedule or business address (see Serraro v. Staropoli, 94 AD3d 1083 [2012] ).

While these two attempts, one of which was during normal working hours, were sufficient to satisfy the reasonable application standard of RPAPL § 735 (see Eight Assoc. v. Hynes, 102 A.D.2d 746 [1984], affd 65 N.Y.2d 739 [1985] ; SBS Owners, Inc. v. Kelly, 19 Misc.3d 141[A], 2008 N.Y. Slip Op 50938[U] [App Term, 1st Dept 2008] ), they were insufficient to establish the due diligence required to obtain personal jurisdiction over tenant (see Barnes v.. City of New York, 70 A.D.2d 580 [1979], affd 51 N.Y.2d 906 [1980] ; Matter of McGreevy v. Simon, 220 A.D.2d 713 [1995] ; Bleier v. Heschel, 128 A.D.2d 662 [1987] ; cf. Brown v. Teicher, 188 A.D.2d 256 [1992] ). Under these circumstances, the monetary portion of the default final judgment was a nullity (see Oppenheim v. Spike, 107 Misc.2d at 56 ), and must be vacated.

Although the record contains a second affidavit of the process server indicating that conspicuous service was also made at a purported business address of tenant in Hoboken, New Jersey, landlord does not rely on...