Opinion
2008-326 K C.
Decided February 9, 2009.
Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen M. Spodek, J.), dated February 5, 2008. The order denied a motion by tenant to be restored to possession, to vacate a default final judgment and warrant, and to dismiss the petition.
Order reversed without costs and tenant's motion to be restored to possession, to vacate a default final judgment and warrant, and to dismiss the petition granted.
PRESENT: PESCE, P.J., WESTON PATTERSON and STEINHARDT, JJ.
In this commercial nonpayment proceeding, the petition and notice of petition were served by conspicuous place service. After tenant failed to appear, a default final judgment was entered, a warrant issued, and tenant was evicted. Tenant subsequently moved to be restored to possession, to vacate the default final judgment and warrant, and to dismiss the petition. In support of the motion, tenant's principal averred, inter alia, that landlord knew that tenant's restaurant was closed, because of a kitchen ceiling collapse, at the times that service was attempted and the papers affixed to the restaurant's outer gate. In opposition, landlord did not dispute this assertion. In these circumstances, landlord failed to make a "reasonable application" (RPAPL 735) prior to resorting to conspicuous place service, and, thus, service was defective ( 30-40 Assoc. Corp. v Destefano, 2003 NY Slip Op 50625[U] [App Term, 1st Dept 2003]; Roysen Enters. v Gordon, NYLJ, Jan. 26, 1993 [App Term, 1st Dept]; Mark Stamping Corp. v Mark Cabinet Mfg. Corp., 160 Misc 2d 555 [Civ Ct, Kings County 1994]; see also 616 E. Lincoln Ave., Inc. v Finley, NYLJ, Nov. 1, 1996 [App Term, 9th 10th Jud Dists]).
Accordingly, tenant's motion to be restored to possession, to vacate a default final judgment and warrant, and to dismiss the petition should have been granted.
Pesce, P.J., Weston Patterson and Steinhardt, JJ., concur.