Parkchester Apartments Co. v. Hawkins
| Decision Date | 10 December 1981 |
| Citation | 111 Misc.2d 896,447 N.Y.S.2d 194 |
| Parties | PARKCHESTER APARTMENTS CO., Petitioner-Landlord-Appellant, v. Daryl HAWKINS, Respondent-Tenant-Respondent. |
| Court | New York Supreme Court — Appellate Term |
Charles S. Lazarus and Michael Hornstein, New York City, for respondent.
Before HUGHES, J.P., and RICCOBONO and ASCH, JJ.
Order dated July 1, 1981, is reversed with $10 costs; the traverse is denied and the final judgment of possession is reinstated.
The process server testified that on April 27, 1981 he attempted personal service on the tenant. He gained entrance to the premises at 1510 Archer Road, with a key to the front door of the building furnished him by the Parkchester Management, took the elevator to the 7th floor, where he rang the bell of the tenant's apartment at approximately 7:35 A.M. Receiving no response, he waited several minutes and rang again. Unable to effect service, he scotch taped the notice of petition and petition to the door of the apartment, and completed service by certified and regular mail the following day. In response to the court's questioning, the process server testified that he did not attempt to use the intercom system upon entering the building.
At the conclusion of the hearing, the court correctly observed that receipt of process was not the issue, but rather whether the process server complied with the statute. In determining that issue, the court sustained the traverse finding that a reasonable attempt to effect personal service would require the process server to use the intercom system to signal the tenant of his desired access to tenant's premises.
RPAPL section 735 permits nail and mail service where admittance to the premises cannot be obtained "upon reasonable application." The process server's efforts are not to be judged by the "due diligence" standard for service of process in ordinary actions imposed by CPLR 308(4). "A lower grade of effort" is contemplated in exacting "reasonable application" to the extent that the process server "may ring once (or twice if so moved) and if such mild, lawful efforts come to naught, he may proceed with posting and mailing" (Coulston v. JKL Founding Corp., N.Y.L.J., March 20, 1974, p. 17, col. 7, as quoted in Hospitality Enterprises Inc. v. Fuego Restaurant Corp., N.Y.L.J., June 5, 1980, p. 11, col. 4 ).
The primary purpose of summary proceedings is to enable the landlord to regain possession quickly and inexpensively. While more is...
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...on the premises at an hour when he could reasonably expect the tenant to be at home ...’ ( Parkchester Apts. Co. v. Hawkins, [111 Misc. 2d 896, 897, 447 N.Y.S.2d 194 (N.Y. App. Term (1981)] )." 102 A.D.2d at 748, 476 N.Y.S.2d at 883. The court noted in Hynes, however, that the process serve......
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