Metropolitan Life Ins. Co. v. Scharpf

• Decision Date: 23 July 1984
• Parties: METROPOLITAN LIFE INSURANCE COMPANY, Petitioner, v. Gordon J. SCHARPF and Salvatore Vantrelli, Respondents.
• Court: New York City Court

Page 567

478 N.Y.S.2d 567

124 Misc.2d 1096

METROPOLITAN LIFE INSURANCE COMPANY, Petitioner, v. Gordon J. SCHARPF and Salvatore Vantrelli, Respondents.

Civil Court of the City of New York,

New York County.

July 23, 1984.

Carb, Luria, Glassner, Cook & Kufeld, New York City, for petitioner.

OPINION OF THE COURT

EDWARD H. LEHNER, Judge:

In considering the numerous requests for default judgments in summary non-payment proceedings submitted during the week ending June 29, 1984, this court must determine, in light of the recent decision in Eight Associates v. Hynes, App.Div., 476 N.Y.S.2d 881 (1st Dept.1984), whether it has jurisdiction over the various respondents who were allegedly served by conspicuous service. One of such requests was made in this proceeding.

In Eight Associates, the process server affixed a copy of the petition and notice of petition to respondent's door at 12:28 P.M. on a weekday. The majority held that "under the facts presented herein, one attempt to serve process during 'normal working hours' did not satisfy the 'reasonable application' standard" set forth in the statute, but added that "in so doing we do not rule that such service during normal working hours would be insufficient under all circumstances." The court, in finding a lack of jurisdiction did not specify the minimum efforts a process server must undertake to constitute "reasonable application" under RPAPL 735, nor define the term "normal working hours."

The majority cited (with approval) the Second Department decision in Brooklyn Heights Realty Co. v. Gliwa, 92 A.D.2d 602, 459 N.Y.S.2d 793, where it was held that to be a basis for conspicuous service an attempt "must be made at a time when the process server could reasonably expect someone to be home" as "the effort must have some expectation of success."

The dissenting justices contended that the majority ruling "eliminates conspicuous place service (nail and mail) as a basis for acquiring jurisdiction in a summary proceeding" and that "any such service during 'normal working hours' will be ineffective to confer jurisdiction since it will not constitute 'reasonable application' under the statute."

As a consequence of the foregoing decision, each judge, until there is some clarification, will have to independently set standards necessary to sustain jurisdiction. Hence, although in commenting on practice in our court the Appellate Term recently said (Central Park Gardens v. Ramos, N.Y.L.J., April 9, 1984, p. 12, c. 6.) that "uniform rules of civil procedure and substantive law must be applied so as to avoid an intolerable spectacle of matters being determined more upon the basis of which judge may be presiding in a given case than upon the bases of such uniform rules and substantive law," applicants for default judgments will now most likely face different guidelines for jurisdictional determinations depending on the individual judge's interpretation of RPAPL § 735.

Of the 104 requests submitted for default judgments relating to residential premises in which conspicuous service was alleged, none asserted a prior...