2017 NY Slip Op 27164
Rochester City Court2017Background
- Landlord Cornhill LLC commenced a summary rent nonpayment proceeding against tenant Alice Sposato seeking eviction and $4,735 in rent, late fees, and attorney fees.
- Respondent was served by conspicuous “nail and mail” service under RPAPL 735(1); she did not appear or answer.
- Trial court denied a default money judgment because respondent was not personally served; County Court reversed and remanded.
- On remand this court examined whether the landlord had satisfied the higher due diligence standard required before obtaining a default money judgment after conspicuous service.
- The process server’s affidavit listed three personal attempts (two on the same date) at times likely during work/transit and contained no evidence of inquiries about respondent’s workplace or neighbors.
- The court also noted petitioner failed to submit a non‑military service affidavit (a curable, nonjurisdictional defect).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conspicuous “nail and mail” service alone supports entry of a default money judgment | Conspicuous service after attempted personal service suffices for default money judgment | Conspicuous service without sufficient prior personal attempts does not confer jurisdiction for a money judgment | Denied: conspicuous service alone is insufficient; due diligence in prior personal service is required |
| What standard governs prior personal service attempts before resort to conspicuous service when seeking money judgment | Landlord argued prior attempts met required efforts | Tenant argued landlord failed to exercise the CPLR due diligence standard | Held: "due diligence" (more rigorous than "reasonable application") is required to support a default money judgment after conspicuous service |
| What showing is required to satisfy due diligence for personal service before conspicuous service | Landlord relied on the process server affidavit showing three attempts | Tenant pointed to timing and lack of inquiries as insufficient | Held: Attempts must be qualitative: minimum three attempts on different dates with at least two at times a person would likely be home, plus genuine inquiries about workplace/neighbors; landlord failed to show this |
| Effect of deficient service attempts on court jurisdiction to enter money judgment | Landlord contended defects did not bar default money judgment | Tenant maintained lack of due diligence deprived court of jurisdiction to enter money judgment | Held: Failure to exercise due diligence deprived court of jurisdiction to enter a default money judgment (but nonmilitary affidavit defect is curable) |
Key Cases Cited
- Eight Assoc. v. Hynes, 102 A.D.2d 746 (discusses relative undesirability of conspicuous service and personal service requirements)
- Brooklyn Heights Realty Co. v. Gliwa, 92 A.D.2d 602 (requiring reasonable application of attempts before conspicuous service for possession)
- Empress Manor Apts. v. Levenson, 115 A.D.2d 586 (requiring at least one attempt during working hours and one when a working person might be home)
- Greene Major Holdings, LLC v. Trailside at Hunter, LLC, 148 A.D.3d 1317 (due diligence must be strictly observed; examples of inadequate attempts)
- Kader v. Kader, 132 A.D.3d 1376 (due diligence requires genuine inquiries regarding workplace and neighbors)
- McSorley v. Spear, 50 A.D.3d 652 (focus on quality, not quantity, of personal service attempts)
- Moran v. Harting, 212 A.D.2d 517 (failure to show due diligence defeats default money judgment jurisdiction)