Filancia v Clarke
Annotate this CaseDecided on January 29, 2019
City Court of Mount Vernon
Lucia Anna Filancia, Petitioner,
against
Gayon Clarke, PETER IBE, Respondents.
3134-18
Durante, Bock & Tota, PLLC
Attorneys for Petitioner
2000 Maple Hill Street, Suite 206
Yorktown Heights, New York 10598
Gayon Clarke and Peter Ibe
Pro se Respondents
Adrian N. Armstrong, J.
Petitioner commenced this holdover summary proceeding on November 16, 2018. Respondents failed to appear on December 3, 2018, and a Final Judgment of Possession was granted to the petitioner with a five day stay of the execution of a warrant of eviction. A judgment and warrant was issued to the petitioner on December 18, 2018.
Respondent Gayon Clarke filed an Order to Show Cause seeking to vacate the judgment and warrant on the ground of improper service of the Petition and Notice of Petition. The Order to Show Cause was signed by the Court, and made returnable on January 17, 2019. On the return date the Court granted a Traverse hearing which was conducted on January 24, 2019.
At a Traverse hearing, the Petitioner bears the burden of proving by a preponderance of the credible evidence that service was properly effectuated (Frankel v Schilling, 149 AD2d 657 (AD2d 1989). Pursuant to the service requirements of RPAPL § 735(1), service in a summary proceeding may be made "by personally delivering the Notice of Petition and Petition to the respondent; or by delivering to and leaving personally with a person of suitable age and discretion who resides or is employed at the property sought to be recovered, a copy of the Notice of Petition and Petition, if [*2]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 and Petition upon a conspicuous part of the property sought to be recovered". Service effectuated upon a person of suitable age or discretion or by posting in a conspicuous location further requires that within one (1) day after delivering to such suitable person or affixing, that the Notice of Petition and Petition must be mailed to the Respondent both by registered or certified mail and by regular first class mail (Id.).
Applying the above standards, the Court finds that the process server, Nahshon Halevi, credibly testified at the Traverse hearing that he made three (3) attempts at service at the subject property on two (2) different days at times when he believed the respondents would reasonably be expected to be home prior to resorting to conspicuous service (see 809-811 Kings Highway, LLC v Pulse Laser Skin Care, 901 NYS2d 906 [App Term, 2d, 11th & 13th Jud. Dists. 2009]). Mr. Halevi testified that he first went to the subject premises on November 19, 2018 at 7:20 p.m. He next went the following day at 8:25 a.m. and 6:30 p.m. He further testified that he knocked on two separate doors at the premises, and there was no answer on all three occasions. As a result, the papers were left affixed to the entrance door of the premises. Pursuant to statute, copies were also sent by first class and certified mail to the respondents at the residence address. Mr. Halevi's testimony was corroborated by affidavits of service (see exhibit A in evidence).
Respondent, Gayon Clarke appeared pro se and testified that she found no papers at the house, that she did not receive a copy in the mail, and that she would not have known about the proceeding, but for her daughter, who also resides at the premises, finding a 72 hour notice affixed to a door at the premises.
Contrary to respondent's contention, receipt of actual notice need not be proved to establish proper service. Constitutional due process standards require that process be served by a legally approved method that, viewed objectively, is reasonably calculated to make the respondent aware of the proceedings even if the notice of petition is never actually received (Dobkin v Chapman, 21 NY2d 490 [1968]); NY Const., art. 1, § 6.
To obtain repossession of property in a summary proceeding, a landlord must demonstrate "reasonable application" in its prior attempts to serve process on the tenant personally before resort to conspicuous "nail and mail" service is permitted. Conspicuous "nail and mail" service is the "least desirable of the three service methods available under RPAPL 735 (1) because when used, there is a reduced likelihood that a respondent will actually receive process. (Eight Assoc. v Hynes, 102 AD2d 746 [1st Dept 1984], affd 65 NY2d 739 [1985]; see Serraro v Staropoli, 94 AD3d 1083, 1084 [2d Dept 2012].) For that reason, in summary nonpayment and eviction proceedings, New York State courts require sufficient attempts to serve process on a tenant personally before resorting to conspicuous service is permitted. Moreover, many courts have held that conspicuous place service may not be used until a reasonable application has been made to effect service either by personal delivery or substituted service (see, House of Brewery Corp., v. Ensley, 182 Misc 2d 471, 698 NYS2d 816 [1999]; [*3]Manhattan Embassy Co., v. Embassy Parking Corp., 164 Misc 2d 977, 627 NYS2d 245 [1995]). Reasonable application means that there must be at least a reasonable expectation of success in finding a person on the premises to whom delivery may be made (Joseph v Lyu, 58 Misc 3d 159(A) (2d Dept App Term 2018).
Based upon the foregoing, the Court finds that the credited evidence at the Traverse hearing established that the use of conspicuous place service in the instant matter was proper in light of the three attempts of personal service on Monday, November 19, 2018 at 7:20 p.m. and Tuesday, November 20, 2018 at 8:25 a.m. and 6:30 p.m. Said attempts were on different days at different times of the day, one in the morning and two in the evening, at times when a person could reasonably be expected to be at home.
Accordingly, respondents' order to show cause to vacate the judgment and warrant is denied, and all stays are vacated.
This constitutes the Decision and Order of this Court.
Dated: January 29, 2019
Mount Vernon, New York
____________________________
HON. ADRIAN N. ARMSTRONG
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