S. P. S. G. Inc. v. Collado

• Decision Date: 02 March 1982
• Citation: 113 Misc.2d 167,448 N.Y.S.2d 385
• Parties: S. P. S. G. INC., Petitioner-Landlord, v. S. P. COLLADO, Respondent-Tenant.
• Court: New York City Court

Page 385

448 N.Y.S.2d 385

113 Misc.2d 167

S. P. S. G. INC., Petitioner-Landlord, v. S. P. COLLADO, Respondent-Tenant.

Civil Court of the City of New York New York County.

March 2, 1982.

Scott, Edelstein of Edelstein & Reisman, New York City, for petitioner-landlord.

DECISION

MARGARET TAYLOR, Judge.

"Reasonable Application" Standard In Section 735 of the RPAPL

It is the practice in the residential Landlord-Tenant part of the Civil Court in New York County in non-payment proceedings to submit to the judges sitting in that part numerous applications for default judgments for possession of residential premises. During the week beginning January 11, 1982, 201 such applications in which the tenants had not appeared were submitted to this court. In 196 (including the instant matter) jurisdiction over the tenants had allegedly been obtained as a result of conspicuous place service of the notice of petition and petition ("the papers") pursuant to Section 735 of the Real Property Actions and Proceedings Law ("RPAPL").

The affidavits of service in the vast majority of these cases alleged a single attempt by the process server to obtain admittance to the premises between the hours of 9:00 A.M. and 4:30 P.M. to effect service by personal delivery of the papers either to the tenant or a person of suitable age and discretion residing or employed at the premises. The question presented to the court, therefore, is whether such an attempt satisfies the requirements of Section 735 of the RPAPL which permits "nail and mail service" only when admittance to the premises cannot be obtained and such persons found "upon reasonable application".

The "reasonable application" standard of RPAPL 735 requires less of a process server than does the "due diligence" standard of CPLR 308(4). At the very least, however, this lesser standard requires that service be attempted at a time when the process server can "reasonably expect the tenant to be at home...." Parkchester Apts. Co. v. Hawkins, 111 Misc.2d 896, 447 N.Y.S.2d 194 (App. T. 1st Dept.). Absent information which would lead the process server reasonably to believe that the person sought to be served (or even a person of suitable age and discretion) was generally at the premises during the usual working hours of the week, it is the view of this court that a single visit to a residence on a weekday between the hours of 9:00 a. m. and 4:30 p. m. does not constitute reasonable application within the meaning of RPAPL § 735. Indeed, such a visit is "most unlikely to succeed." See Monacelli v. Khoury, N.Y.L.J. 10/10/80, p. 7, col. 4 (App.T. 1st Dept.). Thus, the process server's allegation in the instant case, that he attempted to serve the tenant personally by ringing the bell and knocking on the door of tenant's home (apartment 1-D) at 1:47 p. m. on December 17, 1981, a Thursday, is not sufficient to meet the statutory requirement of reasonable application.

Conspicuous Place Service Affidavits of Non-Military Service

Although the process server was unable to effect personal contact with the tenant in this case, significantly, one Nesto Diaz, the investigator employed by petitioner-landlord's attorney to ascertain whether the tenant was a member of the armed forces, had no such difficulty. Mr. Diaz swears that at an unspecified time on the very same day of the alleged conspicuous place service, December 17, 1981, he called at apartment 1-D and conversed with the tenant. Mr. Diaz swears that the tenant personally stated to him on that date that he was not in the military service.

This fact pattern is pervasive in applications for default judgments of possession in landlord-tenant summary proceedings. As noted above, in 196 of the 201 proceedings in which default judgments were sought, the process servers were unable to effect service either by personal delivery to the tenants or by substituted service and, instead, claimed conspicuous place service. In 162 (or 83%) of these same matters, investigators employed by the attorneys representing the landlords were successful in making direct personal contacts with the tenants for the purpose of ascertaining that such tenants were not in military service so that affidavits of compliance with the Soldiers and Sailors' Civil Relief Act, 50 U.S.C.App. § 520, could be filed. These contacts between the investigators and the tenants occurred in some cases before the petitions were even prepared, in some...