We know that the failure to comply with the rules governing service of predicate notices and pleadings can result in the dismissal of your proceeding. Similarly, knowing the intricacies of the rules regarding service can save what might appear to be defective service and result in unexpected benefits.
An often overlooked decision by the Supreme Court, Appellate Term, supports an award of a default money judgment where service of the notice of petition and petition was accomplished by affixing the papers to the door of the subject premises and mailing the papers by certified and first class mail. Avgush v. Berrahu, 17 Misc. 3d 85, 847 N.Y.S.2d 343, 2007 N.Y. Slip Op. 27424 (2d Dep’t App. Term 2007). The reason: the more burdensome “due diligence” requirement of CPLR 308(4) was complied with rather than the less restrictive “reasonable application” standard set forth in RPAPL 735(1), before the processor server resorted to “nail and mail” service.
In Avgush v Berrahu the process server made five separate attempts to serve the tenant at five different times (from 9:00 a.m. through 9:00 p.m.) over two days. Upon respondent/tenant’s default in appearing, petitioner/landlord sought and was awarded a default money judgment for rent arrears. In affirming the judgment, the Appellate Term held the service at issue complied not only with the “reasonable application” standard of RPAPL 735(1), but also with the “due diligence” standard of CPLR 308(4). Recognizing “the current rule followed in many of the lower courts prohibiting the award of a money judgment upon a tenant’s default in a summary proceeding unless personal jurisdiction was obtained by personal delivery . . .” the Appellate Term specifically stated “that a money judgment should be available in a summary proceeding whenever service has been effected in a manner which would support a money judgment, we hold that service sufficient to satisfy CPLR 308(4) and, indeed, any of the CPLR 308 provisions, is sufficient to support an award of a money judgment in a summary proceeding.”
This holding was based on the Court’s determination that service was “sufficient to meet the New York State and federal constitutional requirements of notice and an opportunity to be heard.”
Thus, it seems prudent to urge process servers to make multiple attempts at service over at least two days, before resorting to “nail and mail” service. The result may be an unanticipated default money judgment.
In another recent case the Court sustained service of a rent demand upon a restaurant/tenant, which was closed at the time of service, where the rent demand was affixed to “the iron entry gate” at the premises. Centre Plaza, LLC v. Chin Young Co., Inc., L&T 63605/10, NYLJ 1202472107676, at *1 (Civ. NY, Decided August 26, 2010). In denying a motion to dismiss and sustaining service of the rent demand, the Court held “the ‘conspicuous part’ of a premises may extend to the location at which the [process] server’s progress is arrested.’” The Court emphasized that because the server “could not get any further than the iron gate,” posting the notice thereon constituted valid “conspicuous place service.”
The Court in Centre Plaza also addressed the validity of service of the notice of petition and petition which were served upon a waiter employed at the tenant/restaurant. Tenant moved to dismiss claiming that the waiter was not a proper person to be served, because he did not have a management role with the restaurant. The Court held service in an summary proceeding is governed by RPAPL 735(1) which, unlike CPLR 311, “does not require that the employee so served have a management role with the respondents . . .” Service upon the waiter employed at the restaurant was sufficient.