City of New York v. Clark

Dec 12, 1996
Versions:234 A.D.2d 120
650 N.Y.S.2d 709
1996 N.Y. App. Div. LEXIS 12421

—Order of the Appellate Term of the Supreme Court, First Department, entered March 31, 1995, which reversed an order of the Civil Court, New York County (Howard Malatzky, J.), entered on or about October 29, 1993, inter alia, denying respondents’ motions to dismiss summary holdover petitions for lack of personal jurisdiction, unanimously reversed, on the law and on the facts, without costs, and the Civil Court’s ex parte order is reinstated.

Petitioner’s demonstration that it had made three prior unsuccessful attempts to gain access to the building through various entrances, and that the mailboxes in the building’s front entrance were non-functional, was sufficient to set forth that service pursuant to RPAPL 735 was impracticable (see, Dobkin v Chapman, 21 NY2d 490). Under the circumstances presented, the Civil Court properly authorized service pursuant to CPLR 308 (5) by affixing process upon the building entrance door and a roll-down gate next to the door, and by inserting process through the mail slot of the door (see, Liebeskind v Liebeskind, 86 AD2d 207, affd 58 NY2d 858; see also, Tremont Fed. Sav. & Loan Assn. v Ndanusa, 144 AD2d 660, lv dismissed 73 NY2d 918 [allowing service by publication pursuant to CPLR 308 (5)]).

We have considered and rejected respondents’ additional claims. Concur—Sullivan, J. P., Rosenberger, Rubin, Ross and Mazzarelli, JJ.