Department of Hous. Preserv. & Dev. of City of N.Y. v 988 E. Parkway Corp.

[*1] Department of Hous. Preserv. & Dev. of City of N.Y. v 988 E. Parkway Corp. 2006 NY Slip Op 52138(U) [13 Misc 3d 1236(A)] Decided on November 1, 2006 Civil Court Of The City Of New York, Kings County Gonzales, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 15, 2006; it will not be published in the printed Official Reports.

Decided on November 1, 2006
Civil Court of the City of New York, Kings County

Department of Housing Preservation and Development of the City of New York, Petitioner

against

988 Eastern Parkway Corp. and Izzy Lindenbaum, Respondents.



HP 1529/05

Cheryl J. Gonzales, J.

Petitioner commenced this proceeding on or about May 24, 2005 seeking civil penalties for respondents' failure correct violations of record and failure to properly file a Multiple Dwelling Property Registration. A default judgment was entered on June16, 2005 in the amount of $423,510. 00 Respondent Izzy Lindenbaum now moves for an order vacating this judgment alleging that he was never served with the petition and notice of petition. The court notes that only the individual respondent seeks to vacate the default judgment and the corporate respondent was served through the Secretary of State pursuant to BCL§306.

In his affidavit in support of the order to show cause, Mr. Lindenbaum states that the subject building is a legal two family house in which there are three apartments currently occupied, and there are five individual entrance doors. Mr. Lindenbaum states that his office is in the basement. Further, Mr. Lindenbaum also claims that he was never served with the underlying notices of violation, and the violations were improperly written. Respondent also alleges that the affidavit of service was untimely filed pursuant to RPAPL §735.

In opposition, petitioner claims that respondent failed to state a reasonable excuse or a meritorious defense. Petitioner asserts that respondent was served at the business/residence address provided on respondents' last valid Multiple Dwelling Registration Statement [FN1] completed in 1996 which fails to identify a particular apartment. Petitioner argues that respondent has not refuted the facts contained in the affidavit of service. In addition, petitioner states that respondent is misguided and the filing requirements of RPAPL §735 are inapplicable as this is not a proceeding to recover possession.

Petitioner accurately states that RPAPL §735 does not apply in this instance. According to the [*2]affidavit of service, conspicuous place service was effected on May 19, 2005. The court stamp indicates that the affidavit of service was filed on May 26, 2005. Pursuant to CCA §110 (m)(6) and CCA §409, affidavits of service must be filed within fourteen days of service. Therefore, there is no question that petitioner meets the requirements of CCA§409.

Multiple Dwelling Law §325 requires that owners of multiple dwellings file a statement including, inter alia, the owner's name and address. The information required by this section enables tenants and government agencies to readily contact owners and other persons responsible for the operation of the building ( A Real Good Plumber, Inc. v. Kelleher, 191 Misc 2d 94 [2002], End Associates v. Raiff, 166 Misc 2d 730, [1995]). Petitioner, citing DHPD v. 532-536 West 143rd Realty Corp., 8 Misc 3d 94 (App. Term 1st Dept. 2005), argues that respondent's registration failed to identify an apartment, therefore respondent cannot now challenge service based on where service was effected. However, unlike the aforementioned case the address in this case was correct, although incomplete, and there is a question as to whether service could be properly made.

Petitioner's argument that respondent's failure to provide an apartment number precludes him from challenging service is without merit. There is no exception to the requirement of due diligence to effect personal and substituted service before nail and mail service is made pursuant to CPLR §308 (4). The affidavit of service of the petition and notice of petition states that the documents were posted on the door, without any further description. The use of nail and mail service reduces the likelihood that the petition will be received. Therefore, the due diligence requirement is strictly observed (Lemberger v. Khan 18 AD3d 447, 205, Guervitch v. Goodman, 269 AD2d 355, 2000). Even under RPAPL §735, which imposes a lesser standard for nail and mail service, the attempts at service must be shown to have some expectation of success (Palumbo v. Estate of Clark, 94 Misc 2d 1, 1978, 2 Tudor City Tenant Corp. v Lapidus NYLJ April 14, 1994, col.4, p. 22). In the instant matter, the affidavit of service is devoid of details, and the quality of process server's attempts needs to be amplified. Diligent efforts to serve the petition would necessarily involve ascertaining at which apartment respondent should be served if it were apparent that there was more than one apartment in the building.

The lack of detail in the affidavit and the allegation by respondent regarding the number of doors raise questions of fact as to whether service was properly made. Therefore this matter is set down for traverse and final determination of the motion in Part B, Room 409 on December 12, 2006, 2:15pm.

This constitutes the decision and order of this court.

Dated: November 1, 2006

_________________________

Cheryl J. Gonzales, JHC Footnotes

Footnote 1:No copy of the registration is included with the motion papers.