Opinion
2008-823 Q C.
Decided February 11, 2009.
Appeal from an order of the Civil Court of the City of New York, Queens County (Charles S. Lopresto, J.), dated September 26, 2007. The order denied a motion by Dominick Giresi and Annamaria Giresi to vacate a default final judgment and warrant, to dismiss the petition, and to be restored to possession.
Order reversed without costs and motion by Dominick Giresi and Annamaria Giresi to vacate the default final judgment and warrant, to dismiss the petition, and to be restored to possession granted.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
In this holdover proceeding, petitioner seeks to recover what it describes as a 1,660-square-foot parcel of land situated adjacent to and east of a property owned by appellants Dominick Giresi and Annamaria Giresi at 88-74 78th Avenue. Petitioner alleges that it terminated appellants' month-to-month tenancy with respect to the subject property. The notice of petition and petition were served by conspicuous place service by affixing them to an entrance door of one of the residential apartments on the property owned by appellants at 88-74 78th Avenue, and by mailing to the residential property. Since RPAPL 735 requires that the papers be affixed to a "conspicuous part of the property sought to be recovered," and since service was effectuated at the property adjacent to the property sought to be recovered, and not at the property sought to be recovered, jurisdiction was not obtained. Accordingly, appellants' motion to vacate the default final judgment and warrant, to dismiss the petition, and to be restored to possession should have been granted. We pass on no other issue.
Pesce, P.J., Golia and Rios, JJ., concur.