809-811 Kings Highway, LLC v Pulse Laser Skin Care

[*1] 809-811 Kings Highway, LLC v Pulse Laser Skin Care 2009 NY Slip Op 52121(U) [25 Misc 3d 130(A)] Decided on October 13, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 13, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2008-2072 K C.

809-811 Kings Highway, LLC, Appellant,

against

Pulse Laser Skin Care, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), dated August 4, 2008, deemed from an order of the same court dated September 12, 2008 (see CPLR 5512 [a]). The order dated September 12, 2008, in effect, denied landlord's motion to set aside the order dated August 4, 2008, which denied landlord's application for entry of a default final judgment of possession and issuance of a warrant of eviction, and sua sponte dismissed the petition.

ORDERED that the order dated September 12, 2008 is reversed without costs, landlord's motion to set aside the order dated August 4, 2008 is granted, the petition is reinstated, and landlord's application for entry of a default final judgment of possession and the issuance of a warrant of eviction is granted.

In July 2008, landlord commenced this commercial nonpayment proceeding seeking to recover possession and the principal sum of $3,750. Tenant failed to appear or answer, and landlord made an application for a default final judgment of possession and issuance of a warrant of eviction. By order dated August 4, 2008, the Civil Court denied the application and sua sponte dismissed the petition, finding that "the Notice of Petition and Petition are insufficient in that there was only one prior attempt to personally serve before affixing the . . . Notice of Petition and Petition to the premises." Landlord subsequently moved to, in effect, set aside the August 4, 2008 order. By order dated September 12, 2008, the Civil Court denied landlord's motion. In October 2008, landlord filed a notice of appeal from the August 4, 2008 order. As the August 4, 2008 order is not appealable as of right (CCA 1702 [a] [2]), we deem the appeal to be from the September 12, 2008 order (see CPLR 5512 [a]).

Before resort may be had to conspicuous place service pursuant to RPAPL 735 (1), a "reasonable application" to complete personal or substituted service is required. As a rule, at least two attempts at personal service are needed to satisfy the "reasonable application" standard (see Eight Assoc. v Hynes, 102 AD2d 746, 748 [1984], affd 65 NY2d 739 [1985]). Moreover, there must be at least a "reasonable expectation of success" in finding a person on the premises to whom delivery may be made (see Naman v Sylveen Realty Co., 222 AD2d 564, 565 [1995]), and such an expectation may come from a business's posted office hours (id. at 565) or from [*2]"common experience" (Palumbo v Estate of Clark, 94 Misc 2d 1, 5 [Civ Ct, Bronx County 1978]).

The affidavit of service in the case at bar indicated that the process server attempted to serve tenant with the notice of petition and petition on Thursday, July 10, 2008 at 1:45 P.M. and on Friday, July 11, 2008 at 10:05 A.M., at which times he "was unable to gain admittance . . . or find a person of suitable [age] and discretion . . . to receive same." When personal service was not effectuated on July 11, 2008, the process server, on the same date, implemented conspicuous place service by affixing the documents to tenant's entrance door and mailing the documents to tenant. We find that the process server's two attempts, during what common experience would dictate are normal business hours, were sufficient to permit conspicuous place service. Accordingly, the order dated September 12, 2008 is reversed, the order dated August 4, 2008 is vacated and landlord's motion for entry of a default final judgment of possession and issuance of a warrant of eviction is granted.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: October 13, 2009