Opinion
Index No. L & T 301181/21
02-08-2022
Jose B. SUERO, Petitioner, v. Jonathan RIVERA, John Doe, Jane Doe, Respondents.
Augustin D. Tella, Esq., 89-09 Sutphin Boulevard, Jamaica, NY 11435, Attorney for Petitioner
Augustin D. Tella, Esq., 89-09 Sutphin Boulevard, Jamaica, NY 11435, Attorney for Petitioner
The decision and order on petitioner's motion is as follows.
PROCEDURAL HISTORY
This holdover proceeding based upon a 60-day notice was commenced in April 2021. The proceeding appeared in Part Z2 on November 8, 2021. Respondent Jonathan Rivera was referred to NYLAG (New York Legal Assistance Group) for potential representation on that date and the proceeding was adjourned to Part E on December 7, 2021. NYLAG did not appear on that date (December 7, 2021) and respondent could not be reached by telephone. The proceeding was adjourned to January 12, 2022 for petitioner to make a motion for default judgment. Petitioner subsequently made, through counsel, the instant motion for an inquest, for a warrant of eviction, and related relief. Proof of service of the motion upon respondents was filed to NYSCEF. The motion was returnable for January 12, 2022. When respondents failed to appear on January 12, 2022, the court granted the motion to the extent of setting it down for an immediate hearing on the ultimate relief. The court conducted the hearing (via Teams, with petitioner's attorney and witnesses) and reserved decision on the ultimate relief requested upon the conclusion of the hearing.
HEARING
Petitioner's attorney first called Xiomara Suero as a witness. Ms. Suero testified that she is petitioner Jose Suero's sister. She described the subject premises as a single-family home with a rented basement. Petitioner's attorney then introduced petitioner's Exhibit 1 (NYSCEF #11). Ms. Suero testified that Exhibit 1 was a lease between the owner of the subject premises and Mr. Suero as tenant. She further testified that this initial lease was renewed in 2021.
Next, Ms. Suero testified that Mr. Suero rented the basement to respondent Rivera but that there was no lease. She also testified that Mr. Rivera was still living in the basement and that he had not returned a COVID-19 hardship declaration. She then testified to the preparation of the notice of termination, and the court took judicial notice of the same. When questioned about how she was connected to the subject building, Ms. Suero testified that she came to live there in February 2020 but was not added to the lease. She also claimed to have a power of attorney for her brother but produced no documentation.
Petitioner's attorney then called petitioner Jose Suero as the second and final witness. Mr. Suero testified that he had leased the subject building and had then made an agreement with Mr. Rivera to rent the basement. Mr. Suero then testified to establish the lease (Exhibit 1) between the building's owner and him. Petitioner's Exhibit 1 was then admitted. The court also took judicial notice of all pleadings and affidavits of service. Finally, Mr. Suero then denied that he had received any hardship declaration or information about an ERAP application from any respondent. He also confirmed that no one was elderly, disabled, or infirm living in the subject premises. Petitioner's attorney then rested.
DISCUSSION & CONCLUSION
Upon a review of the motion record and pleadings, the court must deny petitioner's motion for default relief without prejudice. At the time that service of the notice of petition and petition occurred (April 28-29, 2021), the COVID-19 Emergency Eviction and Foreclosure Prevention Act ("CEEFPA") [L 2020, ch 381] required, in Part A, Section 5(2), service of the notice of petition and COVID-19 hardship declaration by personal delivery, or, if such service could not be made by "due diligence," then pursuant to RPAPL § 735. See e.g. Bel Air Leasing v. Johnston LP , 73 Misc. 3d 809, 157 N.Y.S.3d 346 [Civ. Ct., Kings County 2021].
While enforcement of EEFPA Part A was enjoined by the US Supreme Court on August 12, 2021 (see Chrysafis v. Marks , ––– U.S. ––––, 141 S. Ct. 2482, 210 L.Ed.2d 1006 [2021] ), the injunction remained in effect, under its own express language, only "pending disposition of the appeal in the United States Court of Appeals for the Second Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought." The Second Circuit rendered an order on September 29, 2021 disposing of the appeal and remanding to District Court for further proceedings. See Chrysafis v. Marks , 15 F.4th 208 [2d Cir. 2021]. Under Rule 13 of the Supreme Court Rules, a petition for writ of certiorari must be filed within 90 days of the lower court's judgment. The Second Circuit's judgment mandate issued on October 1, 2021. See United States Court of Appeals for the Second Circuit, Case Number 21-1493, Docket Number 171. This court has found no record of a timely writ of certiorari being filed with the US Supreme Court to seek review of the Second Circuit's October 2021 judgment. The filings for Docket No. 21A8 (Chrysafis v. Marks ) can be found on the US Supreme Court's website at https://www.supremecourt.gov/search/aspx?filename=/docket/docketfiles/html/public/21a8.html [last accessed February 8, 2022].
Here, there are separate affidavits of service for the hardship declaration and the notice of petition and petition. Both assert only two (2) attempts at service before resorting to affixing and mailing. No statements are made to demonstrate that due diligence was exercised before resorting to "nail and mail" service. See Faruk v. Dawn , 162 A.D.3d 744, 745-746, 79 N.Y.S.3d 249 [2d Dept. 2018] ; Estate of Waterman v. Jones , 46 A.D.3d 63, 66, 843 N.Y.S.2d 462 [2d Dept. 2007] [Due diligence requires "genuine inquiries" about the whereabouts of the party to be served]; Merrbill Holdings, LLC v. Toscano , 59 Misc. 3d 129[A], 2018 N.Y. Slip Op. 50410[U], 2018 WL 1528580 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2018] [Conspicuous place service under RPAPL § 735, without a showing of genuine inquiries made, does not suffice as "due diligence" service under CPLR § 308(4) ]; Bel Air Leasing LP , 73 Misc. 3d at 811-812, 157 N.Y.S.3d 346.
As the notice of petition and hardship declaration were not served as required by the relevant statute governing their service then in effect, the court is bound to deny the ultimate relief requested by petitioner. Several appellate cases in the Second Department stand for the proposition that a default judgment cannot be granted upon patently defective papers. See e.g. Gristmill Realty, LLC v. Roa , 2020 N.Y. Slip Op. 51358[U], 2020 WL 6786183 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2020] ; Lakeview Affordable Hous., LLC v. Turner , 66 Misc. 3d 142[A], 2020 N.Y. Slip Op. 50163[U], 2020 WL 629743 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2020] ; Kentpark Realty Corp. v. Lasertone Corp. , 3 Misc. 3d 28, 31, 779 N.Y.S.2d 324 [App. Term, 2d Dept., 2d & 11th Jud. Dists. 2004].
Accordingly, the ultimate relief requested in petitioner's motion is denied without prejudice. This Decision/Order will be filed to NYSCEF. Petitioner's attorneys shall serve a copy of this Decision/Order upon each respondent by first class mail no later than February 14, 2022.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.