Cornhill LLC v. Sposato

• Decision Date: 15 May 2017
• Citation: 56 Misc.3d 364,54 N.Y.S.3d 548
• Parties: CORNHILL LLC, Petitioner, v. Alice SPOSATO, Respondent.
• Court: New York County Court

56 Misc.3d 364

54 N.Y.S.3d 548

CORNHILL LLC, Petitioner,

v.Alice SPOSATO, Respondent.

City Court, City of Rochester, New York. Monroe County.

May 15, 2017.

Andrew J. Dick, Esq., for petitioner.

ELLEN M. YACKNIN, J.

INTRODUCTION

On January 15, 2016, petitioner Cornhill LLC filed a summary rent nonpayment action under N.Y. R.P.A.P.L. Article 7 against its tenant, respondent Alice Sposato. Petitioner's petition sought an immediate warrant of eviction and a money judgment of $4,735.00 for unpaid rent, late fees, and attorney's fees.

Respondent neither answered nor appeared in Court on the March 7, 2016 return date. For that reason, this Court granted petitioner's request for a warrant of eviction. Relying on Fourth Department and Monroe County Court precedent, however, this Court held that petitioner was not entitled to a default money judgment in this action because respondent had not been served personally with the Notice of Petition and Petition. See In Re McDonald, 225 App. Div 403, 233 N.Y.S. 368 (4th Dep't 1929) ; Hirt v. Goldthrite, et al., AP No. 08/18; B No. 08/1539 (App.Term, Monroe County Ct., October 15, 2008).

On appeal, the County Court reversed this Court's decision, finding that the lack of personal service of process in a summary nonpayment proceeding does not, in itself, preclude the entry of a default money judgment. See Cornhill LLC v. Sposato, 55 Misc.3d 685, 51 N.Y.S.3d 828 (Monroe County, February 16, 2017). The County Court therefore reversed this Court's denial of petitioner's application for a money judgment and remanded the case to this Court for further proceedings. This Court must now determine whether petitioner has satisfied the legal prerequisites for the entry of a default money judgment in this action.¹

LEGAL DISCUSSION

Respondent in this action was served with petitioner's nonpayment petition by conspicuous "nail and mail" service pursuant to N.Y. R.P.A.P.L. § 735(1). Conspicuous "nail and mail" service is the "least desirable" of the three service methods available under N.Y. R.P.A.P.L. § 735(1) because when used, there is a reduced likelihood that a respondent will actually receive process. Eight Associates v. Hynes, 102 A.D.2d 746, 476 N.Y.S.2d 881 (1st Dep't 1984), aff'd 65 N.Y.2d 739, 492 N.Y.S.2d 15, 481 N.E.2d 555 (1985). See Serraro v. Staropoli, 94 A.D.3d 1083, 1094, 943 N.Y.S.2d 201 (2nd Dep't 2012). For that reason, in summary nonpayment and eviction proceedings, New York State courts require sufficient attempts to serve process on a tenant personally before resort to conspicuous service is permitted.

To obtain repossession of property in a summary proceeding, a landlord must demonstrate "reasonable application" in its prior attempts to serve process on the tenant personally before resort to conspicuous "nail and mail" service is permitted. See N.Y. R.P.A.P.L. § 735(1) ; Eight Associates v. Hynes, 102 A.D.2d at 748, 476 N.Y.S.2d 881 ; Brooklyn Heights Realty Co. v. Gliwa, 92 A.D.2d 602, 459 N.Y.S.2d 793 (2nd Dep't 1983). The "reasonable application" standard requires, at a minimum, that at least one attempt to serve a tenant personally at his or her residence must be made during working hours, and at least one attempt must be made during hours when a working person could reasonably be expected to be home. See Empress Manor Apartments v. Levenson, 115 A.D.2d 586, 496 N.Y.S.2d 248 (2nd Dep't 1985) ; Brooklyn Heights Realty Co. v. Gliwa, 92 A.D.2d at 602, 459 N.Y.S.2d 793 ; Martine Associates LLC v. Minck, 5 Misc.3d 61, 62, 785 N.Y.S.2d 648 (App.Term, 9th & 10th Jud.Dists.2004) ; Tinker v. Ltd. Partnership v. Berg, 26 Misc.3d 1214(A), 2010 WL 309019, *4 (Dist.Ct., Nassau Cty.2010).

In contrast, to obtain a money judgment against a defaulting tenant following conspicuous "nail and mail" service, a landlord's previous attempts to personally serve process must be more extensive than those that are required to obtain possession of premises. As with defaulting defendants in all civil actions, New York courts uniformly hold that to obtain a money judgment against a defaulting tenant following conspicuous service of process, a landlord must have exercised "due diligence" in his or her prior attempts to personally serve process on the tenant. See Dolan, 3 Rasch's New York Landlord & Tenant Inc. Summary Proc. § 45.14 (4th ed. June 2016 update) ("[B]efore a landlord can be entitled to a [default] money judgment, it must be established that ... conspicuous place service was resorted to only after due and diligent efforts to serve it personally met with failure." [citations omitted] ); Scherer & Fisher, Residential Landlord Tenant L. in NY § 15.12 (December 2016 update) ("If the tenant defaults in a nonpayment proceeding by failing to appear at all, the petitioner may have only a possessory judgment and not a judgment for rent due unless the respondent was personally served with process, or served in compliance with the CPLR "due diligence" standard ...." [citations omitted] ).

For example, in Avgush v. Berrahu, 17 Misc.3d 85, 847 N.Y.S.2d 343 (App.Term, 9th & 10th Jud.Dists.2007), extensively relied upon by the court above,² the court squarely held that where a tenant has been served by conspicuous service, a default money judgment is available only if "[conspicuous] service [was] sufficient to satisfy CPLR 308(4)...." Avgush v. Berrahu,

17 Misc.3d at 90, 847 N.Y.S.2d 343. Under CPLR Rule 308(4), conspicuous "nail and mail" service is permitted only when personal service cannot be made with "due diligence." Avgush v. Berrahu, 17 Misc.3d at 90, 92, 847 N.Y.S.2d 343. See Avgush v. Pascale, 25 Misc.3d 139(A), 906 N.Y.S.2d 770 (App.Term, 9th & 10th Jud.Dists.2009) ("a monetary [default] award may be made ... where service upon the tenant was ... sufficient to support the entry of a money judgment in a plenary action"); Expressway Village, Inc. v. Denman, 26 Misc.3d 954, 959, 893 N.Y.S.2d 736 (Niagara Cty.2009) ("I hold that Avgush got it right. Money judgments are available to a landlord in a summary proceeding provided that [prior personal service attempts were] legally sufficient to support the entry of a money judgment in a plenary action"); Dolan v. Linnen, 195 Misc.2d 298, 327, 753 N.Y.S.2d 682 (N.Y.C.Civ.Ct.2003)³ ("the court acquires personal jurisdiction over a defaulting tenant when the petition and notice of petition are served in a summary proceeding using conspicuous-place service after due diligence in attempting personal delivery or substituted service"). Accord Redstone Garage Corp. v. New Breed Automotive, Inc., 54 Misc.3d 126(A), 2016 WL 7329705, *1 (App.Term, 2, 11, & 13 Jud.Dists.2016) ; African American Realty Co. v. Bebenek, 2001 WL 1682076 (App.Term, First Dep't 2001) ; Oppenheim v. Spike, 107 Misc.2d 55, 56, 437 N.Y.S.2d 826 (App.Term, 1st Dep't 1980) ; Laskey v. Tillotson, 116 Misc.3d 1124(A), 2007 WL 2331933, *3 (Lockport City Ct.2007) ; Guevera v. Cueva, 5 Misc.3d 1024(A), 2004 WL 2827675, *2 (Dist.Ct., Nassau Cty.2004) ; 1405 Realty Corp. v. Napier, 68 Misc.2d 793, 795, 328 N.Y.S.2d 44 (N.Y.C.Civ.Ct.1971) ; Joseph E. Seagram & Sons, Inc. v. Rossi, 45 Misc.2d 427, 428, 257 N.Y.S.2d 60 (N.Y.C.Civ.Ct.1965) ; Fleming v. Flanagan, 178 Misc.2d 723, 727, 680 N.Y.S.2d 427 (Ramapo Town Ct.1998).⁴

As noted above, the efforts a process server must make to personally serve a tenant under the due diligence test are more comprehensive than those required under the less rigorous "reasonable application" test. See Eight Associates v. Hynes, 102 A.D.2d at 746, 476 N.Y.S.2d 881 ; Brooklyn Heights v. Gliwa, 92 A.D.2d at 602, 459 N.Y.S.2d 793 ; County of Nassau v. Letosky, 34 A.D.3d 414, 415, 824 N.Y.S.2d 153 (2nd Dep't 2006) ; Hoskob Associates LLC v. Spanos, 49 Misc.3d 1207(A), 26 N.Y.S.3d 724, *2 (N.Y.C.Civ.Ct.2015). Moreover, the due diligence requirements must be "strictly observed" because of the reduced likelihood that process will actually be received. Greene Major Holdings, LLC v. Trailside at Hunter, LLC, 148 A.D.3d 1317, 1320, 49 N.Y.S.3d 769 (3rd Dep't 2017). See Serraro v. Staropoli, 94 A.D.3d at 1085, 943 N.Y.S.2d 201.

To determine whether prior attempts to personally serve process satisfy the due diligence requirements, a court must "focus[ ] not on the quantity of the attempts at personal delivery, but on their quality." McSorley v. Spear, 50 A.D.3d 652, 653, 854 N.Y.S.2d 759 (2nd Dep't), lv. denied 10 N.Y.3d 715, 862 N.Y.S.2d 336, 892 N.E.2d 402 (2008). See Greene Major Holdings, LLC v. Trailside at Hunter, LLC, 148 A.D.3d at 1321, 49 N.Y.S.3d 769. For this reason, New York appellate courts require that personal service attempts prior to resort to conspicuous service must comply with at least two key prerequisites to satisfy the due diligence test.

First, a minimum of three personal service attempts are required, with at least two attempts on dates and times when it can reasonably be expected that the person to be served will not be at work or in transit. See Greene Major Holdings, LLC v. Trailside at Hunter, LLC, 148 A.D.3d at 1320–21, 49 N.Y.S.3d 769 ; Kader v. Kader, 132 A.D.3d 1376, 1377, 18 N.Y.S.3d 247 (4th Dep't 2015) ; Serraro v. Staropoli, 94 A.D.3d at 1085, 943 N.Y.S.2d 201 ; Austin v. Tri–Cnty. Mem'l Hosp., 39 A.D.3d 1223, 1224, 834 N.Y.S.2d 419 (4th Dep't 2007) ; County of Nassau v. Letosky, 34 A.D.3d at 415, 824 N.Y.S.2d 153 ; O'Connell v. Post, 27 A.D.3d 630, 631, 811 N.Y.S.2d 441 (2nd Dep't 2006). Petitioner's prior personal service attempts failed to satisfy this prerequisite for due diligence.

The process server's January 22, 2016 affidavit of service in this action alleges that he apparently attempted to personally serve respondent at her home on Tuesday, January 19, 2016 at 10:25 a.m., Wednesday, January 20, 2016 at 4:20 p.m., and Wednesday, January 20, 2016 at 6:36 p.m.⁵ These attempts occurred on only two dates, both of which were normal work days. All three attempts at personal service were at times that a person could normally be expected to...