Guevera v Cueva

[*1] Guevera v Cueva 2004 NY Slip Op 51531(U) Decided on December 8, 2004 District Court, Nassau County Fairgrieve, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2004
District Court, Nassau County

ANGHY GUEVERA, Petitioner(s),

against

MAURICIO CUEVA, LUZ MARIA CUEVA, MIGUEL CUEVA, BRENDA CUEVA and JUAN CUEVA, Respondent(s).



SP 1858/03



Rudy Hirschheimer, Esq., for respondents. Stuart R. Jablonski, Esq., for petitioner.

Scott Fairgrieve, J.

ISSUE

Can a money judgment against tenants in a Landlord/Tenant case be based upon substituted service?

FACTS

Respondents Mauricio Cueva, Miguel Cueva and Brenda Cueva move by order to show cause to vacate the money judgment of $20,000.00 granted upon default of respondents in appearing and answering. A review of the Court's records demonstrate that the undersigned granted the application for a default judgment against respondents in the sum of $20,000.00. Judge Asarch signed the money judgment on April 22, 2003, confirming the default judgment granted by this Court on April 15, 2003.

Respondents' attorney states in his affirmation dated November 5, 2004, that respondent/tenant Luz Maria Cueva was personally served and additionally, the process server [*2]delivered four copies of the notice of petition and petition to the respondents/tenants Mauricio Cueva, Miguel Cueva, Brenda Cueva and Juan Cueva to Luz Maria Cueva. Respondents did not contest the affidavit of service that they were additionally served by regular mail and by certified mail.

Respondents attack the service as deficient because there were no prior or subsequent attempts to serve each of the respondents. Respondents contend that personal service (actual in hand service) is needed to establish jurisdiction to support personal jurisdiction for a money judgment. The case of Oppenheim v. Spikes, 107 Misc2d 55, 437 NYS2d 826 (App. Term, 1st Dep't 1980) is cited to support their position that in hand service is required to sustain a money judgment. The court in Oppenheim refused to allow a money judgment to be entered against the tenant because there was no indication that the process server used due diligence before conspicuous service was employed. Thus, no personal jurisdiction was obtained over the defendant tenant based upon conspicuous service.

In the case at bar, respondents were duly served by substituted service which supports a money judgment. See, Touhamy v. Geraldo, 187 Misc2d 550, 723 NYS2d 606, 2001 NY Slip Op. 21129, aff'd App. Term 9th & 10th Jud Dists, December 10, 2002, 2002-158 NC. In affirming Touhamy which upheld a money judgment based upon substituted service, the Appellate Term held: The District Court did not abuse its discretion in refusing to allow tenant to retract his admission that jurisdiction was properly obtained pursuant to RPAPL 735. We note that tenant submitted no affidavit from the person who was served at the premises denying that she resided or was employed at the premises. We further note that, on the record herein, no basis was shown to disturb the money judgment.

The excellent and thorough opinion of Judge Lebovits in Dolan v. Linnen, 195 Misc2d 298, 753 NYS2d 682, 2003 NY Slip Op. 23416, traces the history of the controversy regarding money judgments based upon substituted service. Judge Lebovits concludes that money judgments based upon substituted service are valid. The court in Dolan also notes that Judge Dolan in Rasch supports money judgments based upon substituted service (see Rasch's Landlord and Tenant, Sec. 45:14). Judge Lebovits writes: Judge Dolan's Rasch mostly concurs: "[B]efore a landlord can be entitled to a money judgment, it must be established that the petition and notice of petition were served personally; or that substituted or conspicuous place service was resorted to only after due and diligent efforts to serve it personally met with failure; or that the tenant appeared voluntarily." (3 Dolan, supra , § 45:14, at 172). Although Judge Dolan believes that duly diligent [*3]conspicuous service allows a money judgment, he writes that substituted service may be used only after due diligence is exercised in attempting in-hand delivery. On this last point, respectfully, he errs. Since CPLR 308's 1970 amendment, substituted service confers personal jurisdiction. (See e.g. Eugenis, NYLJ, Mar. 14, 2001, at 21, col. 6 [noting that Judge Dolan's "Rasch is technically incorrect"]; Touhamy, 187 Misc2d at 552-554, 723 NYS2d 606 [finding that court has personal jurisdiction to award money after substituted service without due diligence in attempting personal delivery]; Berman, Richmond County, L & T 506688/00, at 2).

Also see, Fleming v. Flannagan, 178 Misc2d 723, 680 NYS2d 427 (J. Ct. 1998), supporting money judgments in Landlord and Tenant proceedings, based upon substituted service.

The Court notes that respondents do not contest the petitioner's claim that the rent is owed in the sum of $20,000.00

CONCLUSION

The order to show cause to vacate the judgment is denied. Petitioner may execute upon the judgment entered herein and all stays are vacated.

So ordered:

DISTRICT COURT JUDGE

Dated:December 8, 2004

Rudy Hirschheimer, Esq., for respondents. Stuart R. Jablonski, Esq., for petitioner.