Opinion
60788/2019
10-14-2020
HARBOR TECH LLC, Petitioner, v. Alfredo CORREA, Respondent. Harbor Tech LLC, Petitioner, v. Benjamin Soto, Respondents. Harbor Tech LLC, Petitioner, v. Benjamin Soto, Respondents.
For Petitioner: Jeffrey Goldman For Respondent: Jack Lester and Anselmo Alegria
For Petitioner: Jeffrey Goldman
For Respondent: Jack Lester and Anselmo Alegria
Jack Stoller, J. Harbor Tech LLC, the petitioner in these two proceedings ("Petitioner"), commenced these two summary proceedings against Alfredo Correa, the respondent in one of these proceedings ("Respondent Correa"), seeking a money judgment and possession of apartment 206 ("Respondent Correa's apartment") at 14 Verona Street, Brooklyn, New York ("Respondent Correa's building"), and against Benjamin Soto, the respondent in the other one of these proceedings ("Respondent Soto"), seeking a money judgment and possession of apartment 4G ("Respondent Soto's apartment") at 5 Delavan Street, Brooklyn, New York ("Respondent Soto's building"), both on the basis of nonpayment of rent. Respondent Correa and Respondent Soto (collectively, "Respondents") both interposed answers raising defenses regarding the service of both the predicate rent demand notices ("the Demand" as it refers to a respective case or, collectively, "Demands") and the notices of petition and petitions ("the Petition" as it refers to a respective case or, collectively, "the Petitions") in both proceedings. The Court held joint traverse hearings on October 2, 2020.
The traverse hearing
Petitioner introduced a logbook ("the Logbook") of a process server ("the Process Server") into evidence. The Logbook shows that on March 7, 2019, the Process Server made an unsuccessful attempt at service of the Demand at Respondent Soto's apartment at 6:57 p.m., then personally served people in two apartments in the same complex that encompasses Respondent Correa's building and Respondent Soto's building ("the Complex") at 7:00 p.m., then personally served someone in another apartment at the Complex at 7:05 p.m., and then made an unsuccessful attempt at service of the Demand at Respondent Correa's apartment at 7:08 p.m. The Process Server's affidavits of service reflect the attempts at service on Respondents. The Logbook shows that on March 8, 2019, the Process Server served the Demand at Respondent Correa's apartment by conspicuous place service at 12:32 p.m. A photograph of Respondent Correa's door in evidence is time-stamped 12:32:11 p.m. The Logbook shows that the Process Server served the Demand at Respondent Soto's apartment at 12:34 p.m. by substituted service. A photograph of Respondent Soto's door in evidence is time-stamped 12:34:22 p.m. The Process Server's affidavits of service reflect both services and also state that the person served at Respondent Soto's apartment was a white male with gray hair, who was aged 35 to 49 years old, who was five feet four inches to five feet eight inches tall, and who weighed from 160 to 199 pounds. The Process Server's affidavits also allege service of the Demands on Respondents by regular and certified mail at March 8, 2019.
The Logbook shows that on March 25, 2019, the Process Server made an unsuccessful attempt at service at another apartment at the Complex 4:10 p.m., then that the Process Server made an unsuccessful attempt at service of the Petition at Respondent Soto's apartment at 4:12 p.m., then made an unsuccessful attempt at service of the Petition at Respondent Correa's apartment at 4:15 p.m., attempts reflected in the Process Server's affidavits of service. The Logbook also shows that the Process Server served two people in the Complex by personal delivery that day. The Logbook shows that on March 26, 2019, the Process Server personally served someone in another apartment at the Complex at 8:35 p.m. and then served the Petition at Respondent Soto's apartment by conspicuous place service at 8:37 p.m. A photograph of Respondent Soto's door in evidence is time-stamped 8:37:11 p.m. The Logbook states that the Process Server then served the Petition at Respondent Correa's apartment at 8:39 p.m. by conspicuous place service. A photograph of Respondent Correa's door in evidence is time-stamped 8:39:09 p.m. The Process Server's affidavits of service also reflect the latter two entries and allege service of the Petitions on Respondents by regular and certified mail at March 27, 2019.
Respondent Soto testified on Petitioner's case that in 2019, he lived by himself; that he had irregular work hours in March of 2019; that he did not remember where he was on March 7, 2019 or March 8, 2019; that he was out of town on March 25, 2019 and March 26, 2019; that no one was in Respondent Soto's apartment on the latter two dates; that he did not remember if there was a legal notice on the door of Respondent Soto's apartment when he returned, a week later; that the door of Respondent Soto's apartment is black; that there is a peephole and a doorbell in the door; that he might have received legal papers in 2019, although he did not remember for sure; that he weighs 170 pounds; that he is five feet ten inches tall; that his hair is gray; that his skin is brown; that he is 55 years old; that he did not recall being served by a process server with the Demand; that he has been served many times over the past six years, although did not recall when exactly; that he did not remember if he received the Demand or the Petition on his door or in the mail; and that no one lived or worked in Respondent Soto's apartment in March of 2019 who fit the description from the affidavit of service regarding the Demand.
Respondent Correa testified on Petitioner's case that he worked at a restaurant in 2019; that he did not have regular work hours, but he often works in the evenings until two in the morning and then comes home; that he does not remember where he was in March of 2019; that his door is silver; that there is a brown beam which is wood outside his door; that his door says "206" on it; that he never saw the Demand and the Petition attached to his door; and that he did not remember receiving Court papers in the mail.
The Process Server testified that the information on the affidavits of service of the Demands and the Petitions for Respondent Soto's apartment and Respondent Correa's apartment (collectively, "the subject premises") is input from the Process Server's GPS log records; that he does not have a specific memory of the services of the Demands and the Petitions at the subject premises; that he knocks on doors where he is supposed to serve process or rings a doorbell if there is a doorbell; that he waits a minute or a minute-and-a-half after knocking to see if someone would answer the door; that if no one answers he takes a photo of a door; that, if someone opens the door, he asks for the name of the party named in the papers; that he then says that that he has a paper from a landlord for that person; that he asks if the person who answers the door is a resident; that he asks the person who answers the door for their name; that he recognized Respondent Soto, who attended the traverse hearing by videoconference, as the person he served with the Demand; and that he mailed copies of the Demand and the Petition by regular and certified mail by bringing them to a post office after having prepared the mailing labels in advance.
Petitioner introduced into evidence the Process Server's license issued by the Department of Consumer Affairs; the certified mail receipts for the mailings of the Demands and the Petitions on the subject premises; and photographs of the doors of the subject premises that he took on March 8, 2019 and March 26, 2019, which Respondents also both authenticated on their own testimony on Petitioner's case. The photograph of the door of Respondent Correa's apartment on March 8, 2019 shows the Demand affixed thereof. The photograph of the door of Respondent Correa's apartment on March 26, 2019 shows the Demand in the same place as it was on March 8, 2019 as well as the Petition affixed thereof on a different part of the door.
The Process Server testified on cross-examination that he had been to the subject premises before March 8, 2019, and many times in 2019, although he did not remember how many times; that he thinks the subject premises are located in two buildings that are attached to one another; that he travels for process serving by car; that he has had an easy time finding parking near the Complex; the Respondent Soto's apartment is on the fourth floor; that he does not believe that the Complex has an elevator, and so he would have to walk up four flights of stairs to get there; that the way from Respondent Soto's apartment to Respondent Correa's apartment is to walk to the right of Respondent Soto's door if he is facing the door, to then make a right, to then go down a hallway, to then walk on two flights of stairs, which he believes included a landing; to then go through a door on the right side, and to then go down a hallway; that he walks at a brisk pace when he's working; that travel between Respondent Soto's apartment and Respondent Correa's apartment takes thirty seconds but that he does not recall the exact number of seconds; that the Logbook shows that he served six apartments in the Complex within eleven minutes on the same day because service was quicker on other people, as he served them by personal delivery; that getting from one floor to another takes about fifteen seconds; that Respondent Soto's apartment is in the middle of a hallway between two flights of stairs; that his practice is to affix notices with scotch tape; and that he then takes out a phone and enters information such as a description of a door.
Respondent Soto testified on Respondent's case that he has lived in Respondent Soto's apartment for nineteen years; that at least three buildings comprise the Complex, connected by various hallways and doorways; that, in March of 2019, the Complex did not have working elevators; that to enter Respondent Soto's building requires an entrance at one end of the Complex, going up four long flights of stairs with landings, and then a forty- to fifty-foot walk across a small metal bridge, then through a door, and then past three apartments, a process that takes well over a minute; and that he knows Respondent Correa's apartment, which is at the other end of the Complex from Respondent Soto's apartment.
Respondents introduced into evidence photographs, diagrams, and Google Map images of the Complex, which depict three buildings that cover one end of a city block and which show that the entrances to Respondent Soto's building and Respondent Correa's building at different ends of the Complex. Respondents introduced into evidence a video recording of Respondent Soto walking from Respondent Soto's apartment to Respondent Correa's apartment, which took one minute and forty-eight seconds.
Respondent Soto testified on cross-examination that there is no staircase across from Respondent Soto's apartment; that there is an elevator; that there is no stairwell next to elevator; that there are two routes to walk from Respondent Soto's apartment to Respondent Correa's apartment; and that the route depicted in the video recording is the most direct way.
Petitioner's motion to dismiss the service defenses
Respondents' answers both contained affirmative defenses of lack of personal jurisdiction and failure to properly serve the Demands. After examining Respondent Soto, Petitioner moved to dismiss Respondent Soto's service defenses on the basis that Respondent Soto lacked the personal knowledge to verify his answer disputing the Process Server's affidavit of service. However, Respondent Soto's answer alerted Petitioner that he challenged jurisdiction. Petitioner's remedy to purported pleading defects lay in a motion to strike the defense pursuant to CPLR § 3211(b). Calloway v. Nat'l Servs. Indus., Inc. , 93 A.D.2d 734, 735, 461 N.Y.S.2d 280 (1st Dept.), affirmed for reasons stated , 60 N.Y.2d 906, 907, 470 N.Y.S.2d 583, 458 N.E.2d 1260 (1983). In the absence of an order granting of such a motion, the interposition of the pleading with a sworn challenge to the affidavit of service warrants a traverse hearing, Deutsche Bank Nat'l Tr. Co. v. Yurowitz , 181 A.D.3d 646, 647, 117 N.Y.S.3d 605 (2nd Dept. 2020), at which Petitioner bears the burden of establishing jurisdiction by a preponderance of the evidence, Rox Riv 83 Partners v. Ettinger , 276 A.D.2d 782, 783, 715 N.Y.S.2d 424 (2nd Dept. 2000), Blue Spot, Inc. v. Superior Merch. Elecs. Co. , 150 A.D.2d 175, 176-77, 540 N.Y.S.2d 787 (1st Dept. 1989), Skyline Agency v. Ambrose Coppotelli , 117 A.D.2d 135, 139, 502 N.Y.S.2d 479 (2nd Dept. 1986), requiring in part the production of the process server for, inter alia , cross-examination by the party denying receipt. Anton v. Amato , 101 A.D.2d 819, 820, 475 N.Y.S.2d 298 (2nd Dept. 1984). In the absence of a specific limitation of issues in a traverse hearing by the order directing a traverse hearing, Petitioner bears the entirety of its burden of proving that it obtained personal jurisdiction over Respondents. Cooley v. Harkins , 2015 N.Y. Slip Op. 30020(U), ¶¶ 78, 2015 WL 156773 (S. Ct. N.Y. Co. 2015) (Moulton, J.). Accordingly, the Court denied Petitioner's application, without prejudice to the outcome of the traverse hearing. Service of the Demand on Respondent Soto
The Logbook and the affidavit of service state that the Process Server served the Demand for Respondent Soto at Respondent Soto's apartment upon a person who would not give his name. Both documents describe the person. By these documents, the Process server described an individual with the same hair color as Respondent Soto and weighs in the range of pounds that Respondent Soto testified that he weighs. The documents also describe an individual with white skin, while Respondent Soto testified that he has brown skin. The documents describe an individual who is 35 to 49 years old, while Respondent Soto testified at the time of the hearing that he is 55 years old, meaning that about eighteen months prior to the hearing, when the service is alleged to have occurred, Respondent Soto would have been 53 or 54 years old. The documents describe an individual who is five feet four inches tall to five feet eight inches tall, while Respondent Soto testified that he is five feet ten inches tall.
Mistaking a 53- or 54-year-old for someone who could be up to 49 years old and mistaking Respondent's height by two inches are minor discrepancies of the kind that insufficient to even raise an issue of fact as to improper service in the first place, JPMorgan Tr. Bank, N.A. v. Hoffmann , 154 A.D.3d 699, 700, 60 N.Y.S.3d 842 (2nd Dept. 2017), Green Point Sav. Bank v. Clark , 253 A.D.2d 514, 515, 676 N.Y.S.2d 874 (2nd Dept. 1998), particularly when, as here, the person challenging service does not substantiate that they were not at home at the time of service. Id. , TBF Fin., LLC v. Eagle Tours, LLC , 172 A.D.3d 1269, 1271, 101 N.Y.S.3d 365 (2nd Dept. 2019). See Deutsche Bank Nat'l Tr. Co., supra , 181 A.D.3d at 648, 117 N.Y.S.3d 605 (a discrepancy of six inches in the description of the height of the person served is minor).
The discrepancy in the description of Respondent Soto's skin color is less minor, but not fatal to Petitioner's burden of proof of service, particularly given that the Process Server affirmatively testified that he recognized Respondent Soto, combined with Respondent Soto's inability to rebut the Process Server's testimony. Notably, Respondent Soto testified that he had been served with papers a number of times in recent years, even if he did not remember service of the Demand eighteen months before his testimony. On this record, the preponderance of the evidence shows that the Process Server served the Demand by personal delivery on Respondent Soto.
Service of the Demand on Respondent Correa and Service of the Petitions on Respondents
The Process Server alleged service of the Demand on Respondent Correa and the Petitions on Respondents by conspicuous place service, service which is permissible if, upon reasonable application, a tenant cannot be served by personal delivery ("the reasonable application standard"). RPAPL § 735(1). The Process Server effectuated service of these papers all on second attempts at personal delivery, when at least one of the attempts occurred during non-working hours, which normally satisfies the reasonable application standard. Eight Assoc. v. Hynes , 102 A.D.2d 746, 476 N.Y.S.2d 881 (1st Dept. 1984), affirmed , 65 N.Y.2d 739, 492 N.Y.S.2d 15, 481 N.E.2d 555 (1985), SBS Owners Inc. v. Kelly , 19 Misc. 3d 141(A), 2008 WL 1969673 (App. Term 1st Dept. 2008), Tinker Ltd. Partnership v. Berg , 26 Misc. 3d 1214(A), 2010 WL 309019 (Dist. Ct. Nassau Co. 2010), Kokot v. Green , 14 Misc. 3d 1224(A), 2007 WL 283081 (Civ. Ct. N.Y. Co. 2007), 1199 Housing Corp. v. Griffin , 136 Misc. 2d 689, 691, 520 N.Y.S.2d 93 (Civ. Ct. N.Y. Co. 1987), Metropolitan Life Ins. Co. v. Scharpf , 124 Misc. 2d 1096, 1098, 478 N.Y.S.2d 567 (Civ. Ct. N.Y. Co. 1984).
Respondents argue that the Process Server's attempts at service of the Demand on Respondent Correa and the Petitions on Respondents did not satisfy the reasonable application standard, with a heavy emphasis on the time that the Process Server had to have waited after knocking on the door. The Process Server testified that he waits about a minute or a minute-and-a-half. The time entries in the Logbook were consistent with the Process Server's testimony, with the possible exception of the one-minute-and-fifty-eight-second lapse in between the Process Server's affixing of the Petitions on Respondent Soto's door and Respondent Correa's door, as per the time stamps on the Process Server's photographs of the doors. Respondents took the position that the Process Server could not have waited for one-to-one-and-a-half minutes at Respondent Correa's door given the one-minute-and-forty-eight-second travel time between the two apartments that Respondent Soto evinced in the video recording in evidence. Petitioner argues that the walk between the two apartments should not take one minute and forty-eight seconds, characterizing Respondent Soto's pace while walking between the two apartments to be deliberate while noting that the Process Server testified that he walked at a brisk pace when he worked.
The Process Server's travel time between the two apartments on a different occasion assists with resolving this fact dispute. The Process Server personally served Respondent Soto with the Demand two minutes and eleven seconds after the Process Server had affixed the Demand to Respondent Correa's door, as per the time stamps on the photographs that the Process Server took. If the Process Server was able to leave Respondent Correa's apartment and get to Respondent Soto's apartment in enough time to alert Respondent Soto as to his presence and serve him with the Demand in that time frame, then the Process Server could have also traveled from one apartment to the other in enough time to knock and wait for about one minute when he affixed of the Petition to Respondent Correa's door.
Even if the Process Server waited one to one-and-a-half minutes after knocking before affixing papers to the door, Respondents argue that a wait of that duration does not satisfy the reasonable application standard. At a minimum, the reasonable application standard requires a knock or a ring on a door, and a wait sufficient to secure a response or to determine that there shall be no response. 1199 Hous. Corp. , supra , 136 Misc 2d at 691-92, 520 N.Y.S.2d 93. A process server may fail to satisfy this standard upon a showing of intervals between attempts at service of three minutes, 7402 Bay Parkway Assoc. v. Diamond , 116 Misc. 2d 403, 406-07, 458 N.Y.S.2d 122 (Civ. Ct. Kings Co. 1982), attempts at service at a rate of 47 in one 110-minute span and 22 in another 44-minute span, Gouiran v. Young , N.Y.L.J. June 28, 1990 at 28:5 (App. Term 2nd and 11th Depts.), and attempts at service when a process server served 12 apartments in 12 minutes. Blackjack Realty Co. v. De La Rosa , 1997 N.Y.L.J. LEXIS 9494 (Civ. Ct. N.Y. Co.) (Ling-Cohan, J.). Cf. Krodel v. Amalgamated Dwellings, Inc. , 139 A.D.3d 572, 573, 32 N.Y.S.3d 139 (1st Dept. 2016) (a five-minute wait at a door after multiple times ringing a doorbell satisfies the reasonable application standard).
In this matter, three minutes elapsed from a prior attempt at another apartment in the Complex and the first attempt at service of the Demand on Respondent Correa. The second attempt at service of the Demand on Respondent Correa came an hour after the Process Server's previous attempt at service at a different address than the Complex. Two minutes elapsed from a prior attempt at service at another apartment in the Complex and the first attempt at service of the Petition on Respondent Soto. The Process Server's first attempt at service of the Petition on Respondent Correa followed three minutes later. Two minutes elapsed from a prior personal service at another apartment at the Complex to service of the Petition by conspicuous place service at Respondent Soto's apartment, and the Process Server served Respondent Correa with the Petition by conspicuous place service two minutes later, as noted above.
At first blush, the intervals in the between some of the Process Server's attempts at service seem comparable to the intervals found impermissibly hasty in the above-cited authority. But the broader point of service requirements is to assure that service is reasonably calculated to give parties being sued notice of the pendency of the proceeding, Ruffin v. Lion Corp. , 15 N.Y.3d 578, 582, 915 N.Y.S.2d 204, 940 N.E.2d 909 (2010), and the narrower point of the reasonable application standard is to assure a reasonable expectation of success in finding a person on the premises. Palmer House Owners Corp. v. Duchesneau , 64 Misc. 3d 146(A), 2019 WL 3947711 (App. Term 2nd Dept. 2019). As to this goal, the Logbook shows that the Process Server actually does a reasonably good job of finding people to serve in person. Of the eleven apartments where the Process Server attempted service on the two days when he served the Demands on Respondents, the Process Server served someone in person at seven of those apartments -- including Respondent Soto -- even if it took more than one attempt to find someone to serve. Of the eleven apartments where the Process Server attempted service on the two days when he served the Petitions on Respondents, the Process Server served someone in person at eight of those apartments. This record contrasts favorably with the process servers found above to have not effectuated proper service, such only personally serving someone at two of twenty attempts, 7402 Bay Parkway Assoc. , supra , 116 Misc 2d at 406-07, 458 N.Y.S.2d 122, not personally serving a single person in three separate spans, one of 23 attempts, one of 47 attempts, and one more of 22 attempts, Gouiran , supra , N.Y.L.J. June 28, 1990 at 28:5, or where a process server effectuated no service by personal delivery on anyone in twelve attempts. Blackjack Realty Co. , supra , 1997 N.Y.L.J. LEXIS at 9494. In the absence of a bright-line rule establishing a time to wait after knocking at a door, a fact-specific examination of a logbook can find that a process server fulfills a reasonable expectation of success in finding a person at a premises even in the face of a meritorious argument that the time the process server waits after knocking is too short. But See 21-25 Convent Ave. Realty v. Semper , 2017 N.Y.L.J. LEXIS 354 (Civ. Ct. N.Y. Co.)(twenty seconds is too short a time for a process server to wait after knocking before resorting to conspicuous place service). Accordingly, the Court finds that the Process Server satisfied the reasonable application standard in service of both the Demands and the Petitions on Respondents and the Court shall deny the traverse.
Controversy over whether Petitioner has the jurisdiction to obtain a money judgment
While the Process Server served the Petitions on Respondents as per the reasonable application standard, no party disputes that the Process Server did not attempt personal service with due diligence before resorting to conspicuous place service, the higher standard set by CPLR § 308(4) ("the due diligence standard"). Respondents argue that Petitioner therefore cannot obtain a money judgment against them, even if Petitioner obtained personal jurisdiction over them for purposes of possession.
Some authority indeed requires satisfaction of the due diligence standard in order to obtain a monetary recovery against a tenant in a summary proceeding. Merrbill Holdings, LLC v. Toscano , 59 Misc. 3d 129(A), 2018 WL 1528580 (App. Term 2nd Dept. 2018), Borg v. Feeley , 56 Misc. 3d 128(A), 2017 WL 2725679 (App. Term 1st Dept. 2017), Oppenheim v. Spike , 107 Misc. 2d 55, 56, 437 N.Y.S.2d 826 (App. Term 1st Dept. 1980). However, these cases apply to tenants who defaulted in appearing, not tenants who appear. Even if a process server only satisfied the reasonable application standard, a tenant's appearance in a summary proceeding, like any litigant's appearance in any litigation, amounts to personal service, CPLR § 320(b), which would therefore entitle a landlord to a money judgment.
Be that as it may, a litigant's appearance is not tantamount to service by personal delivery when the litigant challenges personal jurisdiction, Id. , as Respondents have done herein. However, for the reasons stated above, after a full traverse hearing, the Court is denying the traverse on the merits, which self-evidently compels the conclusion that the Court has personal jurisdiction over Respondents. Respondents' argument that Petitioner may not obtain money judgments against them therefore warrants an inquiry into the nature of their appearances in these summary proceedings.
Article 7 of the RPAPL, the statute establishing summary proceedings, countenances the reasonable application standard. RPAPL § 735(1). The statute also permits a landlord to plead for a money judgment for unpaid rent, RPAPL § 741(5), and furthermore authorizes the Court to award a landlord a judgment for "such money as it may award for rent or otherwise." RPAPL § 747(4). The Court must construe all parts of an act as a whole, Matter of Plastic Surgery Grp., P.C. v. Comptroller of the State of N.Y. , 34 N.Y.3d 507, 516, 121 N.Y.S.3d 723, 144 N.E.3d 332 (2019) considering its various sections with reference to one another, Matter of Mental Hygiene Legal Serv. v. Sullivan , 32 N.Y.3d 652, 659, 95 N.Y.S.3d 544, 119 N.E.3d 1225 (2019), so that they are internally compatible. People v. Wallace , 31 N.Y.3d 503, 509, 80 N.Y.S.3d 658, 105 N.E.3d 1238 (2018). Thus, a natural read of the plain, express language of Article 7 of the RPAPL authorizes a Court to award a landlord a money judgment in the very proceeding where a tenant was served according to the reasonable application standard.
Notably, the Legislature struck text from the predecessor statute to RPAPL § 735(1) requiring that service shall be made in the same manner as personal service of a summons in an action, L. 1965, ch. 910, § 7, Dolan v. Linnen , 195 Misc. 2d 298, 314-315, 753 N.Y.S.2d 682 (Civ. Ct. N.Y. Co. 2003), and moreover did this after having previously joined actions for possession and arrears into a single summary proceeding. L. 1924, ch. 514, § 1, Patchogue Assocs. v. Sears, Roebuck & Co. , 37 Misc. 3d 1, 4, 951 N.Y.S.2d 314 (App. Term 2nd Dept. 2012), Dolan , supra , 195 Misc. 2d at 308, 753 N.Y.S.2d 682. As the Court must presume that the Legislature knows what statutes are in effect when enacting new laws, In re Adoption of Gerald T. , 211 A.D.2d 17, 21, 625 N.Y.S.2d 509 (1st Dept. 1995), the Legislature's amendments to Article 7 of the RPAPL reinforce the proposition that the Legislature intended that service by the reasonable application standard could still entitle a landlord to a money judgment against an appearing tenant as well as a possessory judgment. Indeed, a landlord may obtain a money judgment against an appearing tenant in a summary proceeding even when a tenant's surrender of possession of the premises after commencement of the proceeding renders possession moot. 1129 N. Boulevard, LLC v. Astra Grp., Inc. , 43 Misc. 3d 137(A), 2014 WL 1717008 (App. Term 2nd Dept. 2014), Tricarichi v. Moran , 38 Misc. 3d 31, 32-33, 959 N.Y.S.2d 372 (App. Term 2nd Dept. 2012), Bahamonde v. Grabel , 34 Misc. 3d 58, 62, 939 N.Y.S.2d 226 (App. Term 2nd Dept. 2011), Abner Props. Co. v. Frederick Goldman, Inc. , 57 Misc. 3d 152(A), 2017 WL 5711063(App. Term 1st Dept. 2017), Mauer-Bach Realty LLC v. Gomez , 43 Misc. 3d 141(A), 2014 WL 2462807 (App. Term 1st Dept. 2014).
If Respondents' argument to the contrary prevailed, then any tenant served according to the reasonable application standard in a summary proceeding could avoid a money judgment by pleading a personal jurisdiction defense, regardless of the merits of such a defense, even if the landlord served the tenant according to the standard the Legislature established for this cause of action. Landlords would then have to split their causes of action, for possession by summary proceedings in Housing Court, and for arrears by plenary actions. While such a split in a landlord's cause of action prevailed as the law before September 1, 1924, as noted above, the Legislature subsequently and permanently eliminated that split. Patchogue Assocs. , supra , 37 Misc. 3d at 4, 951 N.Y.S.2d 314, Dolan , supra , 195 Misc. 2d at 308, 753 N.Y.S.2d 682, Goldman v. Rosen , 2005 N.Y.L.J. LEXIS 4100, *4 (Civ. Ct. N.Y. Co.). The logical implication of Respondents' arguments, then, would contradict the legislative intent to permit service by the reasonable application standard for a proceeding according to which a landlord could obtain a money judgment.
To be clear, the Court is not at all opining that Respondents' service defenses herein were frivolous. The point is the implications of Respondents' argument.
Accordingly, the Court denies the traverse in both cases.
This constitutes the decision and order of this Court.