Dolan v. Linnen

• Decision Date: 01 January 2003
• Citation: 195 Misc.2d 298,753 N.Y.S.2d 682
• Parties: JOHN DOLAN, Petitioner,<BR>v.<BR>SHAUNTE LINNEN, Respondent.<BR>DANIELLA MAXEAN, Petitioner,<BR>v.<BR>CHERYL KIRTON, Respondent.
• Court: New York Civil Court

195 Misc.2d 298
753 N.Y.S.2d 682

JOHN DOLAN, Petitioner,
v.
SHAUNTE LINNEN, Respondent.
DANIELLA MAXEAN, Petitioner,
v.
CHERYL KIRTON, Respondent.

January 1, 2003.

Jacobi, Sieghardt, Bousanti & Piazza P.C., New York City (Mark S. Piazza of counsel), for John Dolan, petitioner.

Scott A. Miller, New York City, for Daniella Maxean, petitioner.

[195 Misc.2d 299]

OPINION OF THE COURT

GERALD LEBOVITS, J.

This 2003 opinion is written to enforce the Legislature's 1924 decision to streamline expensive, duplicative litigation by joining in one lawsuit and before one court summary proceedings for possession and rent. The court, which rides circuit between Richmond and Kings Counties, consolidates for explanation a Richmond County nonpayment proceeding and a Kings County holdover proceeding. Both cases raise a common issue: Whether a court must award a money judgment against a tenant who defaults after receiving a petition and notice of petition by substituted or duly diligent conspicuous-place service.

The issue in these two cases affects more than two cases and more than two counties. Every year across the state, landlords in countless summary proceedings are denied money judgments that should be granted. These landlords must forgo rent justly owed. Or they must begin plenary actions whose service requirements are less protective for tenants than they are in summary proceedings. And this assumes, following the tenants' relocation, that the tenants can be found and served in a plenary action.

Denying money judgments after good service helps only tenants who intentionally default. Tenants who find themselves in serious arrears can avoid in-hand personal delivery and decline to appear in court. The unhappy event of eviction is then tempered by the reality that money owed might never be sought. That discourages tenants from appearing and renders the court impotent to do justice.

Granting money judgments after substituted or duly diligent conspicuous service improves service. To get money judgments, landlords will encourage process servers to effectuate better service than mere reasonable-application service. Better service will result in personal or substituted service more often than not. That will reduce the possibility that a process server will effect sewer service, lessen the chance that tenants will not answer or appear, and decrease the uncertainty that a judge who signs a default warrant will cause a tenant to be evicted without notice.

There is a disconnect, moreover, in which defaulting tenants are evicted for not paying the same rent that the courts refuse to award: "It is somewhat ironic that the standard for service of process for a possessory judgment is less stringent than that for a money judgment. The possessory judgment granted in a

[195 Misc.2d 300]

summary eviction proceeding authorizes forcible eviction of the respondent from her/his home, a matter of far greater importance, in most instances, than the interest in avoiding a money judgment." (Andrew Scherer, Residential Landlord-Tenant Law in New York § 15:12, at 15-7 [2003 ed] [Fern Fisher, View from the Bench].)

This peculiar result—which helps neither honest tenants or landlords nor a unified state court system—has its roots in a 1929 Fourth Department commercial nonpayment case, Matter of McDonald (225 App Div 403 [4th Dept 1929]). The McDonald Court, worried about nonresident commercial tenants, found that personal jurisdiction is only gained over a tenant served personally in hand or who has appeared in the proceedings. (See id. at 406-407.) In so finding, the McDonald Court acknowledged rejecting the plain language of a clearly written statute in favor of ascertaining for itself what the Legislature must have meant. (See id. at 405.) Since then, all the courts denying money judgments after substituted or duly diligent conspicuous service rely on McDonald. But McDonald never applied to noncommercial cases involving residents—like the two at bar and thousands like them. And McDonald no longer applies even to commercial cases involving nonresidents: The United States Supreme Court and the New York State Legislature have eviscerated McDonald's constitutional and statutory underpinnings more times than this opinion has pages.

At one time—although this is debatable—McDonald might have represented good law and good policy. Today McDonald and its progeny represent the opposite.

Conspicuous service, or "nail and mail," is effected when a process server "affix[es] a copy of the notice and petition upon a conspicuous part of the property sought to be recovered or plac[es] a copy under the entrance door of such premises." (RPAPL 735 [1].) In Dolan v Linnen, a Richmond County nonpayment proceeding, tenant defaulted because she failed to answer a petition and notice of petition served conspicuously on the process server's fourth and duly diligent attempt at personal service. The warrant clerk prepared an order, which the court reviewed and signed, granting possession but not money.

After a tenant's failure to answer a nonpayment petition, every New York City warrant clerk will present a Civil Court or Housing Part judge with a default order that provides for a money judgment only when the landlord effectuates in-hand

[195 Misc.2d 301]

personal delivery of the petition and notice of petition. No clerk will give a judge an order for a money judgment when a tenant receives substituted or duly diligent conspicuous service. That policy, passed along through generations of warrant clerks, is codified in a memorandum possessed by many in the landlord-tenant bar dated June 26, 1990, entitled "Warrant Seminar Series: Number 4," and in an undated memorandum entitled "Failure to Answer Procedure."

Neither memorandum addresses whether money may be awarded when conspicuous service is duly diligent, except to cite Oppenheim v Spike (107 Misc 2d 55 [App Term, 1st Dept 1980, per curiam]). But Oppenheim noted that duly diligent conspicuous service entitles a landlord to a default money judgment. As Oppenheim explained, the only reason that Civil Court's "money judgment for rent was a nullity" was that "[t]here is no indication that the process server had used due diligence before resorting to conspicuous service." (Id. at 56 [italics in original].)

Oppenheim, from the Appellate Term, First Department, is strong if not binding authority on this Second Department trial court because neither the Second Department's Appellate Term nor its Appellate Division has considered the issue. (See Stewart v Volkswagen of Am., 181 AD2d 4, 7 [2d Dept 1992, per curiam] [finding that Appellate Division decisions from other departments are binding if Appellate Division in trial court's department has not spoken], revd on other grounds 81 NY2d 203 [1993].) But because Oppenheim is honored by its breach, this court cannot simply cite it and let it go at that. Nor can the court simply cite some other opinions that explain why duly diligent conspicuous service must lead to a default money judgment, and let it go at that. (See e.g. Shared Equities Co. v Merchant, NYLJ, Apr. 24, 2002, at 18, col 4 [Hous Part, Civ Ct, NY County, Wendt, J.]; Macerich Queens Ltd. Partnership v M.I.E. Hospitality, 192 Misc 2d 276, 278 [Civ Ct, Queens County 2002]; Ichikawa v Azzinaro, Civ Ct, Richmond County, Mar. 17, 1997, Straniere, J., L&T No. 53964/96; Fleming v Flanagan, 178 Misc 2d 723, 727 [Just Ct, Town of Ramapo 1998].)

Both memorandums also prohibit money judgments when the petition and notice of petition were served by "leave and mail," or substituted service, which consists of a process server's delivering the petition and notice of petition to "a person of suitable age and discretion who resides or is employed at the property sought to be recovered." (RPAPL 735 [1].) For

[195 Misc.2d 302]

that prohibition the memorandums cite no authorities urging a different result—though several authorities urge that money be awarded following substituted service. (See e.g. Macerich Queens, 192 Misc 2d at 278; Touhamy v Geraldo, 187 Misc 2d 550, 552-554 [Nassau Dist Ct 2001]; Berman v Vargas, Hous Part, Civ Ct, Richmond County, July 13, 2000, Bedford, J., L&T No. 506688/00, slip op at 2.)

Rather, the memorandums cite only Matter of Seagram & Sons v Rossi (45 Misc 2d 427 [Civ Ct, NY County 1965], affd on other grounds 18 NY2d 725 [1966]) and Fairhaven Apts. No. 6 v Dolan (72 Misc 2d 590 [Suffolk Dist Ct 1972]).

Seagram, which allowed a money judgment only for duly diligent substituted service (45 Misc 2d at 428), is no longer good law. It was decided before CPLR 308 was amended in 1970 to abolish the requirement that substituted service be permitted only after due diligence was exercised to effect in-hand personal delivery. (See CPLR 308 [2].) Since 1970, substituted and in-hand personal delivery have been full equivalents; both are personal service. And Fairhaven Apts. No. 6 offers only an oblique defense to denying default money judgments. After the court found—as this court finds—that substituted service under the current CPLR 308 (2) and RPAPL 735 (1) "confers personal jurisdiction" (72 Misc 2d at 591), the court declined to award money—but in part only because the notice of petition did not contain a court-required notice giving the tenant 30 days to answer and primarily because the return date on the notice of petition was one day short of complying with CPLR 308 (2). (Id. at 592.)

The marshal never executed the warrant of eviction against the Richmond County tenant. She found a new home, without paying what landlord claimed was due. After a process server served her at her new home, landlord moved for a money judgment under RPAPL 732 (3). The issue now is whether landlord was entitled to a money judgment all along—whether the court should have granted a money judgment on default after tenant failed to answer the nonpayment petition. The court answers in the affirmative. When conspicuous service...