Gomez v. Gomez
2025 NY Slip Op 50609(U)
Civ. Ct. NYC, Kings Cty.2025Background
- Gerard Gomez (petitioner) initiated a summary holdover proceeding to gain possession of 516 Schenck Avenue, Brooklyn, alleging respondents were tenants at will or at sufferance.
- Respondents, including Joseph Alfred Gomez, Beverly Bailey, and Isaiah Gomez, asserted that the predicate termination notice was defective: it allegedly provided less than the required 30 days’ notice and was improperly served.
- Substitute service of the termination notice was made on Joseph Alfred Gomez on May 30, 2023; a follow-up mailing was sent on June 1, 2023.
- Respondents moved for summary judgment, arguing that service was incomplete and notice was insufficient due to non-compliance with RPAPL §735(1) mailing requirements.
- Petitioner argued that RPL §228 governs service and does not require compliance with RPAPL §735(1), and that the one-day mailing delay was de minimis and not prejudicial.
- The court addressed whether RPAPL §735(1)'s follow-up mailing requirement applies to RPL §228 termination notices in summary holdover proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of RPAPL §735(1) to RPL §228 | RPL §228 only requires delivery to tenant or suitable person or posting; no follow-up mailing is mandated. | RPAPL §735(1) applies, so follow-up mailing within one business day is required; service incomplete until mailing. | RPAPL §735(1) does not apply to RPL §228 notices; no follow-up mailing required. |
| Sufficiency of 30-day notice period | 30-day notice given because notice delivered May 30 for June 30 termination. | Only 29 days’ notice as follow-up mailing completed June 1; insufficient notice period. | 30-day notice requirement met because service is complete with substitute delivery on May 30. |
| Prejudice of defect (mailing delay) | One-day delay was de minimis; no evidence of prejudice to respondents. | Any delay in mailing fatally defective to notice; statute requires exact mailing period. | No prejudice shown; defect is not material since statutory service was satisfied. |
| Law of the case from earlier denial of motion | Prior denial of motion to strike defenses has no bearing; summary judgment standard is higher. | Earlier ruling should prevent re-litigation of notice issue. | Prior decision not law of the case as it was not a final ruling on the merits. |
Key Cases Cited
- Alvarez v. Prospect Hosp., 68 NY2d 320 (N.Y. 1986) (standard for summary judgment motions in New York)
- Andre v. Pomeroy, 35 NY2d 361 (N.Y. 1974) (summary judgment should only be granted when no triable issue of fact remains)
- Wolf Props. Assoc., L.P. v. Castle Restoration, LLC, 174 AD3d 838 (2d Dept 2019) (law of the case doctrine applies only to legal issues resolved on the merits)
- Kimmel v. State of NY, 29 NY3d 386 (N.Y. 2017) (statutory construction prohibits reading omitted provisions into a statute)
- Pepsi-Cola Metro. Bottling Co. v. Miller, 50 Misc 2d 40 (Civ Ct, Bronx County 1966) (service of RPL §228 notice complete upon delivery to suitable age/discretion person)