Li-Seabrooks v. Pimento, 2022-22131

CourtNew York Civil Court
Writing for the CourtShorab Ibrahim, J.
PartiesMichael Li-Seabrooks, Petitioner, v. Sean Pimento, "JOHN DOE," & "JANE DOE", Respondents.
Decision Date28 April 2022
Docket Number2022-22131,Index L & T 310750-2021

Michael Li-Seabrooks, Petitioner,
v.

Sean Pimento, "JOHN DOE," & "JANE DOE", Respondents.

No. 2022-22131

Index No. L & T 310750-2021

Civil Court of the City of New York, Bronx County

April 28, 2022


To: Nora Kenty, Esq., Mobilization for Justice, Inc., Attorneys for Respondent-Pimento

&

Craig K. Tyson, Esq., Law Office of Craig K. Tyson, Attorney for Petitioner

Shorab Ibrahim, J.

RECITATION, AS REQUIRED BY CPLR 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION BY RESPONDENT TO DISMISS THE PROCEEDING: NYSCEF Documents No. 9 through 21.

UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:

FACTS

For the purposes of deciding the within motion, the salient facts are these: respondent lives at 2736 Fenton Avenue, Second Floor, Room 2, Bronx, NY (the unit); the notice of termination was allegedly affixed to the door and subsequently mailed to the unit, with no floor indicated; after attempts on September 21, 2021 at 1:18 PM and September 22, 2021 at 6:07 PM, the notice of petition and petition were allegedly affixed to and subsequently mailed to 2736 Fenton Avenue, First Floor, Room 2.

ARGUMENTS

Respondent argues that service of the termination notice was not upon the property sought to be recovered since, according to the affidavit of service, no floor is indicated. The notice of petition and petition were similarly improperly served as the affidavit of service indicates service upon the wrong floor. Additionally, respondent argues that petitioner did not exercise "due diligence" before resorting to "nail and mail" service.

Petitioner counters that there is only one "room 2" in the subject two floor building and implies that the defects in the affidavits of service are mere drafting errors. Furthermore, petitioner argues that service of the notice of petition and petition were in accordance with instructions appearing on the court's website.

LEGAL ANALYSIS

"Reasonable Application" and "Due Diligence"

As of September 2, 2022, Chapter 417 of the Laws of 2021 (the Act), required service of the notice of petition "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." [1] (see Bel Air Leasing LP v Johnston, 73 Misc.3d 809, 810, 157 N.Y.S.3d 346 [Civ Ct, Kings County 2021]).

Thus, before resorting to the "nail and mail" service performed, petitioner was required to exercise due diligence.

Due diligence requires more effort than the "reasonable application" standard found in RPAPL § 735. (see Bel Air Leasing LP v Johnston, 73 Misc.3d at 810, citing Brooklyn Hgts. Realty Co. v Gliwa, 92 A.D.2d 602, 459 N.Y.S.2d 793 [2nd Dept 1983]). While one attempt inside of normal working hours and one attempt outside those hours may satisfy reasonable application, (see 1199 Housing Corp v Griffin, 136 Misc.2d 689, 691, 520 N.Y.S.2d 93 [Civ Ct, New York County 1987], citing Eight Associates v Hynes, 102 A.D.2d 746, 476 N.Y.S.2d 881 [1st Dept 1985]), due diligence is not so easily met or defined. (see Barnes v City of New York, 51 N.Y.2d 906, 907, 415 N.E.2d 979 [1980] ("Indeed, in determining the question of whether due diligence has been exercised, no rigid rule could properly be prescribed."); Greene Major Holdings, LLC v Trailside at Hunter, LLC, 148 A.D.3d 1317, 1320, 49 N.Y.S.3d 769 [3rd Dept 2017] (While the precise manner to accomplish due diligence is not rigidly prescribed, the requirement that due diligence be...

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