1199 Housing Corp. v. Griffin

136 Misc. 2d 689, 520 N.Y.S.2d 93, 1987 N.Y. Misc. LEXIS 2483
CourtCivil Court of the City of New York
DecidedJune 24, 1987
StatusPublished
Cited by2 cases

This text of 136 Misc. 2d 689 (1199 Housing Corp. v. Griffin) is published on Counsel Stack Legal Research, covering Civil Court of the City of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
1199 Housing Corp. v. Griffin, 136 Misc. 2d 689, 520 N.Y.S.2d 93, 1987 N.Y. Misc. LEXIS 2483 (N.Y. Super. Ct. 1987).

Opinion

OPINION OF THE COURT

Diane A. Lebedeff, J.

Approximately 40 requests for default judgments have been presented in a series of nonpayment proceedings, in which two process servers swear to attempts to serve, pursuant to RPAPL 735, in high-rise buildings. One process server claimed [690]*690such attempts at an average rate of 1 per 3 minutes, and the other generally an average of 1 per 4 minutes.

After considering whether the claimed feats are reasonable or possible — and giving weight to the claim that these process servers have reported this pace of work for a significant portion of their reported workday — several questions come to mind, paraphrased as follows: Faster than a speeding bullet? More powerful than a locomotive? Able to leap tall buildings in a single bound?

This consideration does raise two important legal issues: first, whether the service as claimed could be considered a proper attempt to serve under the "reasonable application” standard of RPAPL 735 (1), and second, what treatment should be accorded reports of service attempts which appear to have occurred with an unlikely rapidity. These inquiries arise because it is one of the functions of this court, as it reviews applications for default judgments to "check affidavits of service, and identify patterns of fraud which may become apparent in the course of dealing with large numbers of proceedings” as was noted by the Appellate Term, First Department, in Central Park Gardens v Ramos (NYLJ, Apr. 9, 1984, at 12, col 6).

THE FACTS

The attempts to serve in these cases were performed with a piston-like perfect regularity at an astonishing speed. Thus, for example, part of one sequence commenced on the 27th floor; one minute later, on the 22nd floor; one minute later, on the 21st floor; two minutes later, on the 14th floor. The second attempts were in the same order with the same elapsed time between each attempt. The process server is Joe Duggins, license number 773930. Mr. Duggins was previously mentioned by Judge Edward Lehner in Leader House Assocs. v Reyes (NYLJ, Feb. 16, 1983, at 13, col 3 [Civ Ct, NY County]) as a process server who had failed to find tenants at home to receive process in an unduly large percentage of his services.

The second process server had a slightly longer average elapsed time, with more variation in the length of time between services. Throughout, the same time lapse uniformly occurred as one compared, first, the two attempts to serve the same tenant, and second, the times between one apartment and the next one at which there was an attempt to serve, although there is one erratic time series one day. The second [691]*691process server also twice seems to have reversed the use of a.m. and p.m. This process server is Howard Belfer, license number 778066.

Both process servers start service at 6:00 a.m. and work through the morning. Each also reports afternoon or evening activity.

"REASONABLE APPLICATION” UNDER RPAPL 735 (1)

Service of process in default situations has become subject to closer review following the 1984 holding of the Appellate Division, First Department, in Eight Assocs. v Hynes (102 AD2d 746, affd 65 NY2d 739 [1985]), that a single attempt to serve during normal working hours on a weekday was not sufficient "reasonable application” under RPAPL 735. Implementing that decision, trial courts have required where conspicuous place service is used that, on weekdays, one attempt be made during normal working hours, between 8:00 a.m. and 6:00 p.m., and a second in the morning hours between 6:00 a.m. and 8:00 a.m. or in the evening hours between 6:00 p.m. and 10:30 p.m. (See, Metropolitan Life Ins. Co. v Scharpf, 124 Misc 2d 1096 [Civ Ct, NY County 1984]; New York State Hous. Fin. v Fawcett, NYLJ, Dec. 19, 1984, at 10, col 6 [Civ Ct, NY County]; Hammer v Berke, NYLJ, Feb. 4, 1985, at 17, col 4 [Civ Ct, Queens County] [with the latter refusing special consideration of "two fare” zones]; see generally, as to two attempts, Brooklyn Hgts. Realty Co. v Gliwa, 92 AD2d 602 [2d Dept 1983]; Mountbatten Equities v Metheny, NYLJ, Apr. 27, 1983, at 13, col 3 [Civ Ct, NY County].) Under these standards, the one reported attempt to serve at 10:35 p.m. must be held to be improper.

While it is generally recognized that the "reasonable application” standard of RPAPL 735 (1) is less than the "due diligence” standard of CPLR 308 (4), there is no question that on each attempt to serve, a process server must signal his or her presence at a door and await a response. Where a process server rings a doorbell and waits several minutes before posting, service will be found proper. Arguments that more is required, such as use of a building’s intercom system, will be rejected, as it was by the Appellate Term, First Department, in Parkchester Apts. Co. v Hawkins (111 Misc 2d 896 [1981]). The court reiterated the statement that a process server " 'may ring once (or twice if so moved), and if such mild, lawful efforts come to naught, he may proceed with posting [692]*692and mailing’ ” (supra, at 897, quoting Coulston v JKL Founding Corp., NYLJ, Mar. 20, 1974, at 17, col 7, which was also quoted in Hospitality Enters. v Fuego Rest. Corp., NYLJ, June 5, 1980, at 11, col 4).

Where the process server does less, however, such as where process was posted on a door when the tenant was inside and not summoned by a ring or knock as in Lipman v Salsberg (107 Misc 2d 276, 278 [Civ Ct, NY County 1980]), service will be found to be improper. At a minimum, therefore, "reasonable application” requires a knock or a ring on a door, and waiting for a sufficient time to secure a response or determine there shall be no response. Further, if there is a response, the process server must ascertain whether the named respondent is absent before resorting to substituted service upon another. (Matter of Smith v Norton, 204 App Div 248, 249 [4th Dept 1922]; 71 St. Assocs. v Van Epps, NYLJ, Apr. 26, 1983, at 12, col 2 [Civ Ct, NY County].)

In short, service of process is not a slapdash affair. There is every reason that service should be done carefully in landlord-tenant residential summary proceedings. The law already allows a simpler mode of service for such cases. The petitioner has an actual residence address and is not under the burden faced by other civil litigants. And, above all, saving a few minutes or some effort in a residential context is contemptible for cutting a corner or two might increase by even one whit the chance of an individual or a family joining the pool of human misery of the homeless on our streets.

Assuming that the statement of the facts of attempted services in these cases are true, reflection leads to a conclusion that the process server spent the major portion of the elapsed time on stairs or elevators, going between one apartment and another. Indeed, the time periods between attempts to serve are so brief that very little time was available to wait for a response at a door.

Accordingly, the court views the affidavits on their face as deficient in satisfying the "reasonable application” standard.

IMPROBABLE RAPIDITY OF SERVICE

The second aspect of this case relates to the pace of the service itself and questioning the truth of the affidavits.

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Bluebook (online)
136 Misc. 2d 689, 520 N.Y.S.2d 93, 1987 N.Y. Misc. LEXIS 2483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/1199-housing-corp-v-griffin-nycivct-1987.