Opinion
69625/2019
12-12-2019
Germaine D. DENIS, as Trustee of the Henri and Doreen Trust, Petitioner/Landlord, v. David FISHER, Respondents/Tenants, "John Doe" & "Jane Doe," Respondents/Undertenants.
Cooper, Paroff & Graham, 80-02 Kew Gardens Road, Suite - 300, Jamaica, New York 11415
Cooper, Paroff & Graham, 80-02 Kew Gardens Road, Suite - 300, Jamaica, New York 11415
This summary holdover was commenced to recover the premises located at 50-17 42nd, 2nd Floor, Sunnyside, New York 11104 based on a 30-day notice of termination dated August 7, 2019 alleging the termination of a month-to-month tenancy. The court held an inquest after respondent failed to appear on December 10, 2019.
The witness, Germaine Denis, trustee of the owning entity trust, credibly testified that the respondent had lived in the premises for 40 years, that the respondent was disabled, that he had been removed from the premises by Adult Protective Services (APS) in April of 2019, and that no rent had been accepted during the window period. However, based on the testimony provided by the Petitioner, in conjunction with the documentary evidence admitted (the certified 2016 deed — Petitioner's 1; the certified MDR registration — Petitioner's 2 and the 30-day notice — Petitioner's 3) as well as the Court taking judicial notice of the contents of the court file, the court finds that Petitioner did not prove their prima facie case.
The Court must first analyze the service to determine personal jurisdiction prior to dealing with any other issues. Elm Mgt. Corp. v. Sprung , 33 A.D.3d 753, 823 N.Y.S.2d 187 (2d Dep't 2006). Attempts at service which are predestined to fail are not considered reasonable attempts, "[in] other words, the attempt at service" must not be unlikely to succeed. See CPLR § 735; 91 Fifth Ave. Corp. v. Brookhill Properties Holdings LLC , 51 Misc. 3d 811, 28 N.Y.S.3d 263 (Civ. Ct. New York Co., 2016) ; 161 Williams Assoc. v. Coffee , 122 Misc. 2d 37, 469 N.Y.S.2d 900 (Civ. Ct. New York Co. 1983). Here, Petitioner's witness testified that they knew that the Respondent had been removed somewhere by APS and there was no testimony about any investigation undertaken to ascertain Respondent's whereabouts such that service would not be violative of due process as a "mere gesture." Mullane v. Central Hanover Bank & Trust Co. , 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). As such, pursuant to RPAPL § 735, the service was inadequate.
However, the Court will continue its analysis of the inquest with regard to the appropriateness of the notice. The HSTPA amended, in the relevant part, Real Property Law § 226-c, which mandates that depending on the length of the tenancy of the respondent, they are entitled to a different length of time for the notice of termination. RPL § 226-c. The effective date of this provision of the law was October 12, 2019 (120 days following the passing of the Law — presumably this delay in the effective date was enacted in order to give petitioners the opportunity to serve the correct notices). Since October 12, 2019 was a Saturday and October 14 was a holiday, the first "actual" effective date was October 15, 2019.
The point where a proceeding is commenced is either upon the filing of the petition and notice of petition or the filing and service of the petition and notice of petition. (see 92 Bergenbrooklyn LLC v. Cisarano , 50 Misc. 3d 21, 21 N.Y.S.3d 810 [App. Term 2d, 11th and 13th Jud. Dists., 2015] ; ABN Assoc., LLC v. Citizens Advice Bur., Inc. , 27 Misc. 3d 143(A), 2010 WL 2473144 [App. Term 1st Dept., 2010] ; 207-213 West 144th Street HDFC v. Jenkins , 44 Misc. 3d 1224(A), 2014 WL 4210146 [Civ. Ct. New York Co., 2014] ). This proceeding, as such, was commenced either October 17, 2019 — the date that the petition and notice of petition were filed — or October 25, 2019 — the date that service was effectuated upon the respondent by personal service — or October 28, 2019 — the date that Petitioner filed the proof of service with the Court. Because each of these dates are after the effective date of the relevant changes made by the Housing Stability and Tenant Protection Act of 2019 (HSTPA), the Court need not reach the exact date of commencement. The operation of law remains the same with regard to all three dates. Petitioner's Counsel's argument that the date of commencement of the proceeding is with the service of the notice of termination is unavailing, partly, because it would undermine, or rather moot out, all case law dealing with the acceptance of rent in the "window period" of post-notice and pre-petition.
Here, Petitioner commenced the proceeding after the effective date of the provisions of the HSTPA-amended RPL § 226-c which then apply in the case at bar. Since, by Petitioner's own testimony, the Respondent-tenant has been living in the subject premises for more than two (2) years, he was entitled to a 90-day notice, not a 30-day notice.
Therefore, for the reasons stated above, the petition is dismissed. This constitutes the decision and order of the court.