Opinion
No. L & T 070352/2015.
10-14-2015
Hoskob Associates LLC, Petitioner v. Nikolaos SPANOS a/k/a Nick Spanos 90 Thompson Street, Apt. No. A1 New York, N.Y. 10012, Respondent Dustin M. Reid, Allan Stevo, Jay "Doe" "John Doe" "Jane Doe" et al Respondents–Occupants.
James E. Kasdon, Esq., New York, Attorney for Petitioner. Mayne Miller, Esq., Brooklyn, Attorney for Respondent.
James E. Kasdon, Esq., New York, Attorney for Petitioner.
Mayne Miller, Esq., Brooklyn, Attorney for Respondent.
SABRINA B. KRAUS, J.
BACKGROUND
This summary holdover proceeding was commenced by HOSKOB ASSOCIATES New York, N.Y. 10012 (Subject Premises) based on the allegation that Respondent is not maintaining his primary residence in the Subject Premises.
PROCEDURAL HISTORY
Petitioner issued a Golub Notice dated March 3, 2015, terminating Respondent's tenancy as of the expiration of his last renewal on June 30, 2015. The petition is dated July 1, 2015, and the proceeding was initially returnable on July 22, 2015.
Respondent failed to appear on the initial return date, and the proceeding was adjourned to August 5, 2015 for inquest. On August 5, 2015, Respondent appeared by counsel and the proceeding was adjourned to August 17, 2015 for motion practice.
On August 17, 2015, Respondent moved for an order vacating his default on appearing on the initial return date and for dismissal of the proceeding. The motion was granted by the court (Weisberg, J) on August 24, 2015, to the extent of setting the matter down for a traverse hearing, and was otherwise denied by the court, who found that the predicate notice was sufficient.
On September 25, 2015, the proceeding was assigned to Part R for the traverse hearing. The hearing took place, and the proceeding was adjourned to September 30, 2015, for the submission of legal memoranda by counsel. The parties stipulated that the traverse hearing was only on the issue of service of the Notice of Petition and Petition.
On September 30, 2015, Petitioner's counsel submitted a memo, no post hearing submission was made by Respondent's counsel, and the court reserved decision.
There is also a pending nonpayment proceeding between the parties under Index Number 60161/2015.
FINDINGS OF FACT
Isaac P. Harris (Harris)was the licensed process server who served the papers and the first witness to testify at the hearing. Harris has a valid license to serve process, valid through February 28, 2016 (Ex 1). Harris maintains a log book which was admitted into evidence (Ex 2). Harris made an initial attempt to serve the Notice of Petition and Petition on July 13, 2015, at 8 pm. Harris was not able to get into the subject building on this date, as the front door was locked and he had not been provided with a key. Harris testified that he attempted to use the intercom to buzz the Subject Premises, and gain entry but that there was no answer. However, based on his testimony, and the testimony of Respondent, the court does not believe that Harris followed the proper procedure to correctly activate the intercom. Harris testified that he knocked on the door to the building, heard no answer and pressed on a buzzer two times. Harris was able to see the door to the Subject Premises through the glass entrance door of the subject building. Harris made an entry in his log book and left.
Harris returned to the subject building the following morning at 10:20 am. Harris gained entry to the building when another tenant exited. Harris knocked on the door of the Subject Premises two times and received no answer. Harris then taped 8 copies of the papers to the door of the Subject Premises. Later that day Harris mailed additional copies. Copies of the mailing receipts were submitted into evidence [Ex 3(a)-(l) ].
Harris testified that it is general practice to make the initial attempt in the evening between 6 and 10 pm, and to return the following morning for the second attempt, and that this is how is employer has directed him to proceed.
Harris' log book reflects that he made approximately 19 other attempts at service on July 13, 2015 between the hours of 4:18 pm and 8 pm. The times on almost all of said attempts were changed, in most cases they were pushed back by 15 or 20 minutes. Harris testified that he could not recall why these changes were made.
Harris submitted GPS records (Ex aa) but they do not correspond to the records in his log book, and the court does not give them great weight as they are not the business records of Harris.
Respondent was the second witness to testify at the trial. Respondent states that he works on Prince Street and usually goes back and forth between the Subject Premises and his office once or twice a day. Respondent is generally not back from work until after 10 pm.
To use the intercom from outside the building it is necessary to enter a four digit code. Respondent does not believe the intercom works, or that it was working in July 2015. Respondent has a doorbell on his door, it makes a single chime.
On July 14, Respondent was in the Subject Premises before 6 am, and he believes that he went out, because that is his habit. Respondent does not recall when he returned to the Subject premises on July 14, but estimates it was somewhere between 4 pm and 1 am. Respondent was not home at the time of the second service. When Respondent returned to the Subject Premises on July 14, he did not see any papers affixed to the door, or any tape on the door. Respondent testified that he never received a copy of the notice of petition and petition in the mail, and that he first learned that this proceeding was pending through his lawyer.
DISCUSSION
§ 735(1) of the RPAPL provides that service of the notice of petition and petition shall be made by personal delivery or delivery to a person of suitable age and discretion residing or employed at the property sought to be recovered. The statute further provides "... if upon reasonable application admittance can be obtained and such person found who will receive it, or if admittance cannot be obtained and such person found, by affixing a copy of the notice and petition upon a conspicuous part of the property sought to be recovered or by placing a copy under the entrance door of such premises ...". The statute further requires a mailing within one day after conspicuous place delivery or delivery to a person of suitable age and discretion.
Because conspicuous place delivery is the least desirable of the three methods, it can only be employed, after the reasonable application standard has been met (Palumbo v. Estate of John Clark 94 Misc.2d 1 ). The reasonable application standard has been held to be less stringent then the due diligence required under CPLR § 308(4) [City of New York v. Enzo Biochem, Inc. 164 Misc.2d 918 ]. While whether a reasonable application has been made is a fact sensitive inquiry requiring the court to determine whether under the particular circumstances of the case service was reasonably calculated to apprise Respondent of the pending proceeding (Bossuk v. Steinberg 58 N.Y.2d 916 ). Reasonable application has generally been held to require one attempt during business hours, and one attempt outside business hours (Eight Associates v. Hynes 102 A.D.2d 746 one attempt to serve at tenant's apartment during normal working hours did not satisfy reasonable application standard; Dolan v. Linnen 195 Misc.2d 298 ).
The court finds that Harris did not meet the reasonable application standard prior to affixing the papers. The basis of this finding is that on the first attempt made by Harris, he essentially did no more then stand outside the building. While he testified that he pressed one single buzzer on the building intercom system and knocked on the entrance door to the building, the court finds credible the testimony of the Respondent that a four digit code would have been required to properly use the building intercom. Moreover, this testimony was not contradicted by Petitioner.
Additionally, Petitioner was obligated to advise Harris as to the proper method to gain entry into the subject building [FPTK, LLC v.. Paradise Pillows, Inc. 9 Misc.3d 1125(A) (landlord has an obligation to convey knowledge of facts necessary for successful service to its attorney, who has an obligation to convey it to the process server) Ancott Realty, Inc. v. Gramercy Stuyvesant Independent Democrats 127 Misc.2d 490 ]. Thus Petitioner should have arranged to provide Harris with the ability to enter the building, by providing a key, having an agent meet Harris at the building, or at a minimum instructing Harris as to the proper use of the intercom system [199 Housing Corp. v. Griffin 136 Misc.2d 689 (process server must signal his presence on each attempt by knocking on the door and/or ringing the bell, and awaiting a response ) ].
Moreover, the property sought to be recovered is the Subject Premises, not the subject building, thus for apartment buildings, an attempt requires the process server to go to the door of the tenant's apartment (Federal Home Loan Mortgage Corp. v. 666 St. Nicholas Associates 1995 WL 628998 ). Petitioner's reliance on Merchandise National Bank of Chicago v. Lister 5 Ad2d 653 is misplaced. In some cases, where the process server is denied access by a doorman or other circumstances, it has been held that the actual dwelling place of the tenant may be deemed extended to the lobby or may make delivery to a doorman acceptable.
However, in the case at bar no such factors are present. Petitioner was fully able to provide Harris with the means necessary to enter the subject building, but neglected to do so. Under these circumstances, attempts at service must be made at the door of the Subject Premises and the property sought to be recovered can not be deemed extended to public areas of the building, the lobby or the outside entrance [Reliance Audio Visual Corp v. Bronson 141 Misc.2d 671 ; Marshall v. Hull 12 Misc.3d 1175(A) ; McCormack v. Goldstein 204 A.D.2d 121 ; FI DuPont v. Chen 41 N.Y.2d 794 ; Roldan v. Thorpe 117 A.D.2d 790 ].
Based on the foregoing, the court finds that service of the notice of petition and petition was improper in this proceeding and the proceeding is dismissed.
This constitutes the decision and order of the Court.
The parties may pick up their exhibits from Window 9 in the clerk's office on the second floor within 30 days. After said period any remaining documents may be disposed of in accordance with administrative directives.