Fleming v. Flanagan

• Decision Date: 16 October 1998
• Parties: , 1998 N.Y. Slip Op. 98,627 Paul FLEMING, as Executor of James E. Fleming, Deceased, Petitioner, v. Timothy V. FLANAGAN et al., Respondents.
• Court: New York Justice Court

Page 427

680 N.Y.S.2d 427

178 Misc.2d 723, 1998 N.Y. Slip Op. 98,627

Paul FLEMING, as Executor of James E. Fleming, Deceased, Petitioner, v. Timothy V. FLANAGAN et al., Respondents.

Justice Court, Town of Ramapo,

Rockland County.

Oct. 16, 1998.

ARNOLD P. ETELSON, Town Justice.

In this non-payment summary proceeding respondent has not appeared and a warrant has been issued. The issue: Is petitioner entitled to a money judgment?

The circumstances are unusual. The process server made four (4) attempts to serve the statutory 3-day notice demanding rent and on the fourth attempt served same by conspicuous service and statutory mailing on July 24, 1998. On August 10 he made one (1) attempt to serve the notice of petition and petition and on August 11 made two (2) more attempts and then served them by conspicuous service and statutory mailing on August 13. The eviction papers were filed in the Spring Valley Justice Court, but that proceeding was dismissed on August 18 on respondent's motion for lack of jurisdiction as the premises did not lie within the territory of that village. On August 19 service was attempted in a summary proceeding to be filed in this court with an August 24 return date. Personal delivery could not be made and petitioner did not want to await the court's next date of September 14 because of the intervening Labor Day holiday.

In the absence of a judge of this court, petitioner, on August 20, obtained an order to show cause from the Supreme Court, acting for this court, directing respondent to appear in this court on Monday, August 24, and directing service of the order to show cause, notice of petition and petition by conspicuous affixing and mailing by certified and regular mail by August 21. Respondent was served in that manner on August 21. In further support of the order to show cause petitioner's attorney related that respondent was constantly evading service by means of a complex security system with surveillance cameras. The papers were filed on August 21.

The order to show cause, notice of petition and petition each requested a money judgment and the order to show cause specifically requested a judgment for rent arrears and use and occupancy until respondent vacated the premises, plus attorney's fees.

The court reserved decision on the return date on the money judgment issue and directed petitioner's attorney to brief the issue which he did by filing a motion on notice to respondent also served by the conspicuous service procedure.

The issue of money judgments in summary proceedings in the absence of personal delivery of process or appearance by the tenant has plagued the courts because of the amendments of the service of process laws and the conflicting court decisions throughout the state. The confusion has led some of the courts (this court included) to the "apparent rule" that money judgments were not allowable in non personal delivery cases. Professor Siegel has explained the courts' reluctance (see section 575 of New York Practice, Second Edition) as has a New York Law Journal article by Treiman and Feder found on page 1 on July 30, 1985. Both are of the opinion that due diligence in attempting service will support a finding of in personam jurisdiction necessary to award a money judgment. See also Rasch, Landlord and Tenant, 3rd Edition, Section 45:12.

In 1924 the Civil Practice Act was amended to permit a landlord to obtain a warrant and a money judgment for rent if the notice (precept) demanded same. Before the amendment a separate action for rent was required. See Matter of McDonald, 225 App.Div. 403, 233 N.Y.S. 368, 1929, which appears to be the case that established the perceived rule that substituted service without a court order could not support a money judgment. In 1965 the Second Department in Callen v. Dekoninck, 23 App.Div.2d 757, 258 N.Y.S.2d 627, allowed a money judgment based upon service other than by personal delivery pursuant to a court order where the tenant was evading service. Although the above New York Law Journal article questions whether court ordered service pursuant to CPLR 308(5) is available in its RPAPL 735 counterpart, it seems logical to this court that if due diligence will support the entry of a money judgment, then it certainly should do the same when buttressed by a court order that presumably was secured based upon a prior showing of due diligence. That is especially true in the case at bar where the order to show cause directed service consistent with RPAPL 735.

Since Callen, summary proceedings are directed by the Real Property Actions and Proceedings Law, specifically Section 735 with respect to the manner of service. Section 308 of the CPLR directs how personal service may be obtained and when service is complete. If both sections must be complied with in order to obtain a money judgment on the return date, petitioner cannot possibly accomplish that feat. He cannot serve the notice of petition and petition between 5 and 12 days before the return date and have the court declare the tenant in default in not answering within 30 days after service is complete in the case of substituted service. It should be noted that, as distinguished from Section 308(2), Section 735(1), in the absence of personal delivery, requires that the person served reside or be employed at the premises.

The time problem should not exist in the Justice Court. Section 402 of the Uniform Justice Court Act requires a minimum return date of 6 days after personal delivery of the summons or 6 days after service is complete (upon filing the summons and affidavit of service) where service is other than by personal delivery (Section 410). The summons with indorsement or summons and complaint when properly served gives the court jurisdiction to enter a money judgment within the above time limits and CPLR 3012(a) does not apply. The summary proceeding provides a petitioner possessory and money judgment relief in the same proceeding. Except for the landlord who wants both his warrant and money judgment on the return date, in most cases the non-appearing tenant will be in default within a few days later at which time a money judgment...