RICCIARDO v. RICCIARDO (2004)

This ejectment action was referred to this Court on October 5, 2004 for a Traverse hearing on the question of service of the 30 day termination notice and the summons and complaint.   The Court ordered the parties to submit memorandums of law in support of their respective positions and adjourned the hearing to November 5, 2004.   The parties submitted their briefs;  however, on November 4, 2004, plaintiff's counsel via letter informed the court that plaintiff “will not be proceeding with the Traverse hearing ․” ¹ Although the question to be decided is moot as far as this case is concerned, this court feels it is necessary to render a decision on the facts as presented so as to provide guidance to litigants faced with similar circumstances in the future.

FACTS

The main item of dispute in this action deals with the service of the 30 day termination notice.   The process server made two attempts at service before resorting to service by conspicuous means.   The first attempt was made at 6:34 p.m. and the second attempt was made at 9:18 a.m. the following morning.   Defendant argues that the process server failed to exercise due diligence before resorting to an alternative mode of service and therefore service is not valid as it is not in compliance with C.P.L.R. § 308.

Plaintiff argues that service of process is valid because the more stringent requirement of C.P.L.R. § 308 is not the applicable standard in service of a 30 day termination notice (see Pepsi-Cola Metropolitan Bottling Co. v. Miller, 50 Misc.2d 40, 269 N.Y.S.2d 471).  C.P.L.R. § 308 is only applicable to the summons and complaint whereas service of a 30 day termination notice is governed by the more liberal requirement of N.Y.R.P.L. § 232-a.

Defendant counters that N.Y.R.P.L. § 232-a is only applicable in the case of a summary proceeding and an ejectment action is not such a proceeding.

LEGAL ANALYSIS

Historically, the only means for a landlord to regain possession of the premises was by common law action of ejectment.   However, the action of ejectment became so overburdened with procedural devices that it became an expensive and dilatory proceeding which in many instances amounted to a denial of justice.   Thus in 1820, the legislature devised the statutory scheme of summary proceedings to remedy the situation and provide landlords with a simple, expeditious and inexpensive means of regaining possession of premises [Zenila Realty Corp. v. Masterandrea, 123 Misc.2d 1, 472 N.Y.S.2d 980;  Reich v. Cochran 201 N.Y. 450, 94 N.E. 1080].

The 1820 concept of summary proceedings was transferred to the code of civil procedure (Laws of 1880, ch. 245), then to the Civil Practice Acts (Laws 1920, ch. 925), and finally within Article 7 of the Real Property Actions and Proceedings Law (Zenila Realty Corp. v. Masterandrea, supra ).   The basis for an ejectment action, on the other hand, lie in RPAPL Article 6.

 The law in this department is that when there is a valid landlord-tenant relationship, a predicate notice must be served on the defendant before commencement of an ejectment action (Kaur v. Sobhey, 5 Misc.3d 1012(A), 2004 WL 2532300 (N.Y. Civ.Ct.);  Gerolemou v. Soliz, 184 Misc.2d 579, 710 N.Y.S.2d 513 [App. Term 2nd Dept.], Triborough Bridge and Tunnel Authority v. Wimpfheimer, 163 Misc.2d 412, 620 N.Y.S.2d 914;  Weiden v. 926 Park Ave. Corp., 154 A.D.2d 308, 546 N.Y.S.2d 595 (1st Dept.1989)).

The authority for the holdings in the cases previously cited lie in the common law and N.Y.R.P.L. § 232-a which reads as follows:

“No monthly tenant, or tenant from month to month, shall hereafter be removed from any lands or buildings in the city of New York on the grounds of holding over his term unless at least thirty days before the expiration of the term the landlord or his agent serve upon the tenant, in the same manner in which a notice of petition in summary proceeding is now allowed to be served by law, a notice in writing to the effect that the landlord elects to terminate the tenancy and that unless the tenant removes from such premises on the day on which his term expires, the landlord will commence summary proceedings under the statute to remove such tenant therefrom.”

RPAPL Article 6 ejectment actions are not summary proceedings;  however, courts in requiring that a 30 day termination notice be served, have in essence interpreted N.Y.R.P.L. § 232-a as being a two part statute;  one part of the statute addresses the notice requirement and its manner of service, the other addresses the contents of the notice.   Thus, in finding that N.Y.R.P.L. § 232-a prohibits removal of a month to month tenant in the City of New York unless the 30 day notice is served in the same manner in which a notice of petition in summary proceeding is now allowed to be served, courts have determined that N.Y.R.P.L. § 232-a addresses the manner in which service of the 30 day notice is to be made (see Lorenzo v. Rivera, 132 Misc.2d 591, 504 N.Y.S.2d 955;  Zamar v. Fair, 153 Misc.2d 913, 583 N.Y.S.2d 731;  13A Carmody-Wait 2d § 90:29).

When the tenancy is not month to month but a tenancy at will or sufferance, N.Y.R.P.L. § 228 determines the manner in which the tenancy may be terminated and also determines the manner of service of the 30 day termination notice (see N.Y.R.P.L. § 228;  Fisher v. Queens Park Realty Corp., 41 A.D.2d 547, 339 N.Y.S.2d 642;  Carman v. Fox, 86 Misc. 197, 149 N.Y.S. 213;  Lippe v. Professional Surgical Supply Co., 132 Misc.2d 293, 503 N.Y.S.2d 254;  N. Shore Community Services v. Lehrfeld, 3 Misc.3d 436, 776 N.Y.S.2d 739;  Boyar v. Goodman, 202 A.D.2d 541, 609 N.Y.S.2d 279).

C.P.L.R. § 101 states in part “․ The Civil Practice Law and Rules govern the procedure in civil judicial proceedings in all courts of the state and before all judges, except where the procedure is regulated by inconsistent statute․”

 C.P.L.R. § 308 addresses the manner of service of process, mainly the summons and complaint by which an action is initiated.  N.Y.R.P.L. § 232-a addresses the manner of service of the 30 day termination notice by which a month to month tenancy is terminated (see Lorenzo v. Rivera;  Zamar v. Fair, supra ).   Thus in accordance with C.P.L.R. § 101, the Civil Practice Law and Rules do not apply to the manner of service of the 30 day notice to terminate a month to month tenancy in the City of New York as this is governed by N.Y.R.P.L. § 232-a (see Ertischek v. Blanco, 173 Misc. 153, 17 N.Y.S.2d 719).

 Accordingly, this Court is of the opinion that the manner of service of the 30 day termination notice in an ejectment action where a month to month tenancy exists is governed by N.Y.R.P.L. § 232-a which is the only statute that specifically addresses the manner of service of a 30 day termination notice in this situation.   When the tenancy is one at will or sufferance then N.Y.R.P.L. § 228 is the governing statute and not the C.P.L.R.

The plaintiff having informed the Court that it will not be proceeding with the Traverse hearing, has conceded that it cannot establish proper service of the 30 day termination notice or the summons and complaint.   Therefore, the Court is compelled to sustain the Traverse and dismiss the action without prejudice.

Accordingly, the Traverse is sustained and the ejectment action is dismissed without prejudice.

This constitutes the Decision and Order of this Court.

FOOTNOTES

1.   Upon receipt of this letter, the Court contacted plaintiff's attorney requesting a stipulation resolving the Traverse issue.   Plaintiff's counsel informed the Court that he was in the process of contacting his adversary regarding the re-service of the 30 day notice of termination and the summons and complaint.   He was then ordered to provide a definite answer to the Court by November 19, 2004.   As of the date of this decision, the Court has not heard from him.

MANUEL J. MENDEZ, J.