Opinion
December 6, 1961
Eugene Adams for petitioner.
No appearance for defendants.
This is a summary proceeding by Joseph Raymond, doing business as Raymond Castle Apartments, petitioner, against Richard L. Grotz and Mary Grotz, for an order for removal of the defendants and, in addition, a judgment for rent in the sum of $480.
On the return date, the tenants failed to appear. The petitioner now moves for an order and judgment for $480 and has submitted the following: (1) petition; (2) precept; (3) affidavit of posting and mailing; (4) affidavit of landlord that defendants' whereabouts are unknown.
It is apparent from the affidavit of the process server that service was made pursuant to section 1421 of the Civil Practice Act by physically affixing a copy of the precept and petition upon a conspicuous part of the property, and in addition, mailing the petition and precept to the defendants' last-known place of residence.
Here the precept does contain notice that a demand for judgment for rent in arrears is made in the petition.
To secure a judgment for rent in a summary proceeding, not only must the precept contain a notice that a demand is made in the petition for judgment for rent in arrears, but it must be served either personally, or by substituted service. In other words the court must acquire jurisdiction of the person of the tenant as if the proceeding were an action for rent.
A distinction, however, must be made between the substituted service of the precept and petition permitted by section 1421 of the Civil Practice Act, and the type of substituted service that is required to warrant a judgment for rent. A judgment for rent in a summary proceeding may only be granted upon a service that would be sufficient for that purpose in an action for rent. Therefore, the substituted service required for this purpose is one that is authorized by a court order upon a showing that the precept and petition cannot be served personally, and not one that is made pursuant to section 1421 of the Civil Practice Act, without any court order. (See Matter of McDonald, 225 App. Div. 403. )
It is therefore the opinion of this court that a judgment for rent in a summary proceeding is not authorized where the service of the precept is made by affixing a copy thereof upon a conspicuous part of the demised premises, and there is no appearance by the tenant in the proceeding.
It is therefore ordered that delivery of possession of the property described in the petition be awarded to the petitioner; and that a warrant issue to put him into possession. However, the request for a money judgment is hereby denied.