LI SEABROOKS v. PIMENTO (2022)

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, 157 N.Y.S.3d 346, 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, 434 N.Y.S.2d 991, 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 exercised must be strictly observed.)).

Here, service was designed to comply with the reasonable application standard rather than the due diligence standard. Petitioner concedes this in pointing to the court webpage, which specifically refers to that provision of the RPAPL. (see NYSCEF Doc. 17 and NYC Housing Court (nycourts.gov) [last accessed on April 15, 2022]).

It is, of course, possible for a petitioner to meet the due diligence standard when reasonable application would suffice. (see, e.g., Avgush v. Berrahu, 17 Misc. 3d 85, 86, 847 N.Y.S.2d 343 [App. Term, 9th & 10th Jud. Dists. 2007]).

However, the two attempts here, on consecutive weekdays, with no further information provided, does not satisfy due diligence. (see Bel Air Leasing LP v. Johnston, 73 Misc. 3d at 811-812, 157 N.Y.S.3d 346 (Conspicuous place service under RPAPL § 735, without showing of genuine inquiries made, does not suffice as due diligence service); see also Suero v. Rivera, 74 Misc. 3d 723, 725, 162 N.Y.S.3d 684 [Civ. Ct., Queens County 2022]; Dolan v. Linnen, 195 Misc. 2d 298, 324, 753 N.Y.S.2d 682 [Civ. Ct., Richmond County 2003] (“Two responsible attempts at in-hand or substituted service before resorting to conspicuous service satisfy reasonable application but not due diligence.”); Borg v. Feeley, 56 Misc. 3d 128(A), *1, 2017 N.Y. Slip Op. 50834(U), 2017 WL 2725679 [App. Term, 1st Dept. 2017] (“Significantly, the affidavit of service does not describe any efforts to ascertain the tenant's whereabouts, work schedule or business address.”)).

Reliance on the Court's Website

To be fair, petitioner does not argue that he has met the due diligence standard. Rather, he argues that reasonable application sufficed because, as stated above, the court's website referred to the RPAPL service standard. (see Opposition Affirmation at par. 11 & par. 18).

A review of the relevant webpage reveals it was last updated on February 18, 2020, which was prior to the true onset of the Covid-19 pandemic. The pandemic affected summary eviction proceedings in many ways with the issuance of Executive and Administrative Orders and the passage of new law. (see Cabrera v. Humphrey, 192 A.D.3d 227, 230-231, 140 N.Y.S.3d 609 [3rd Dept. 2021]; Morrison Management LLC v. Moreno, 71 Misc. 3d 1230(A), *1-2, 2021 N.Y. Slip Op. 50528(U), 2021 WL 2347155 [Civ. Ct., Bronx County 2021]). It was and is incumbent upon practitioners to know of and to adapt to these changes. (see Fielding v. Kupferman, 65 A.D.3d 437, 440, 885 N.Y.S.2d 24 [1st Dept. 2009] (“[A]n attorney is obligated to know the law relating to the matter for which he/she is representing a client and it is the attorney's duty, ‘if he has not knowledge of the statutes, to inform himself, for, like any artisan, by undertaking the work, he represents that he is capable of performing it in a skillful manner.’ ”) [citations omitted]).

As service requirements are strictly construed, (see Macchia v. Russo, 67 N.Y.2d 592, 595, 505 N.Y.S.2d 591, 496 N.E.2d 680 [1986]), any reliance upon a webpage's recitation of service of process requirements cannot render proper otherwise improper service.

The Property Sought to be Recovered

No matter the “proper” standard of service, petitioner fails to establish that service was properly effectuated at the premises sought to be recovered. (see RPAPL § 735(1); Filancia v. Clarke, 62 Misc. 3d 1212(A), *1, 2019 N.Y. Slip Op. 50122(U), 2019 WL 348429 [City. Ct., Mount Vernon 2019]).

Normally, a proper affidavit of service creates a presumption of proper service upon a respondent. (see Eros International PLC v. Mangrove Partners, 191 A.D.3d 464, 142 N.Y.S.3d 21 [1st Dept. 2021]; Reliable Abstract Co., LLC v. 45 John Lofts, LLC, 152 A.D.3d 429, 58 N.Y.S.3d 365 [1st Dept. 2017]).

Here, the petition, according to the affidavit of service, was served at the first floor. The parties acknowledge that respondent resides on the second floor. Thus, the affidavit of service is facially defective and insufficient to establish jurisdiction over the respondent. (see Velocity Investments, LLC v. McCaffrey, 31 Misc. 3d 308, 314, 921 N.Y.S.2d 799 [Dist. Ct., Nassau County 2011]; Mercogliano v. Munroe, 22 Misc. 3d 127(A), *1, 2009 N.Y. Slip Op. 50032(U), 2009 WL 78069 [App. Term, 9th & 10th Jud. Dists. 2009] (petition must be dismissed where affidavit of service is facially defective)).²

Based on the above, judgment shall enter in respondent's favor dismissing this proceeding.³

This constitutes the Decision and Order of the court.

SO ORDERED.

FOOTNOTES

1.   The Act was the successor to the COVID Emergency Eviction and Foreclosure Prevention Act (CEEFPA). (see L 2020, ch 381, § 3, part A, § 5 [2]).

2.   Though petitioner should have been aware of the defects in the affidavits of service, he did not make any motions to try to address them.

3.   The other grounds for dismissal are denied as moot.

Shorab Ibrahim, J.