I. Service of Process in Summary Proceedings Service of Process in Summary Proceedings

• Jurisdiction: New York

I. Service of Process in Summary Proceedings

1. Overview of "Traverse" in Summary Proceedings

The method by which service of process is made is rarely an issue in plenary actions, but service disputes are common in summary proceedings, and petitions are frequently dismissed for lack of personal jurisdiction due to improper service. Attorneys who do not regularly practice landlord-tenant law are often caught unawares by the significance that the manner of service takes on in summary proceedings. Petitioners' attorneys should ensure that service is proper and fully compliant with the service statutes, and respondents' attorneys should examine the affidavits of service carefully and raise in the answer and in a motion to dismiss any potential defect in service. However, it is well-established that, in order to contest service, the tenant must provide a sworn denial of an essential element of the service by a person with actual knowledge.¹⁶⁵⁴ With the advent of GPS records of the process server's precise geographical location in recent years,¹⁶⁵⁵ another piece of evidence on the issue of service has become available to the courts and litigants alike.

2. Service Requirements

A notice of petition and petition, notice to terminate a month-to-month tenancy in New York City,¹⁶⁵⁶ written rent demands,¹⁶⁵⁷ and most other notices in summary proceedings must be served under RPAPL 735, which requires that service be made by an individual over 18 years old who is not a party to the proceeding (including lessors or fee owners) and who resides in New York State.¹⁶⁵⁸ To confer jurisdiction over a party, service must be delivered in precise compliance with the service provisions for summary proceedings set out in RPAPL 733 and 735.¹⁶⁵⁹ Failure to comply with the statutory requirements to serve the notice of petition and petition will result in dismissal for lack of personal jurisdiction, and proper service of a predicate notice is a necessary part of the petitioner's prima facie case at an inquest or trial.

The respondent's presence or knowledge of the action or proceeding will not cure defective service because "[a]ctual notice does not cure a defect in service or confer personal jurisdiction on the court." ¹⁶⁶⁰

Under HSTPA, oral rent demands are no longer permitted.

Section 735 of the RPAPL authorizes three forms of service of the notice of petition and petition. The statutorily preferred form of service is personal service: (1) personal (in-hand) delivery to the tenant or (2) "substituted service" by leaving the papers with a person of suitable age and discretion employed or residing at the premises sought to be recovered and sending copies by certified mail and regular mail. To effect personal service other than by personal delivery to the respondent, the process server must know or have a good-faith belief that the intended party received the papers.

Personal delivery service on a corporation may be made by personally delivering the papers to on "an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service," as provided for by the CPLR Article 3 provision for service upon a corporation, or to an employee of the corporation.¹⁶⁶¹ Although RPAPL 735 does not specifically identify a separate method for service on a corporation or limited liability company as does CPLR Article 3, courts have applied the CPLR 311(a)(1) definition to define personal delivery on a corporation under RPAPL 735.

If some or all of the persons to be served are unavailable, service may be made by substituted service, or delivery to a person of suitable age and discretion who lives or works "at the property sought to be recovered. . . ."¹⁶⁶² Substituted service is not personal delivery, but, in combination with in-hand service, it is personal service.¹⁶⁶³ An attempt at in-hand personal delivery is not required before substituted service may be made.¹⁶⁶⁴ No bright-line rule sets a minimum age for acceptance of service, but courts have held that people as young as 12 years old can be proper recipients of service.¹⁶⁶⁵ A person is generally deemed to be of suitable age and discretion to accept service when the nature of their relationship to the person to be served makes it more likely than not that they will deliver process to the party being served.¹⁶⁶⁶ Although courts allude to some minimum age below which "a person should be deemed by the Court, as a matter of law, to be too young to have a valid status as deliveree,"¹⁶⁶⁷ counsel, and ultimately the server, must determine whether the accepting party is of an appropriate age. For federally owned or subsidized housing, service is limited to "adults."¹⁶⁶⁸ Service might be defective even if the recipient's unsuitability is unknown to the petitioner. ¹⁶⁶⁹ Residential landlord-tenant law is unique from other areas of the law in that it effectively disqualifies doormen as persons of "suitable age and discretion" because, as the landlord's own employee, the landlord is effectively serving itself, not the tenant.

If a process server has made multiple unsuccessful attempts to serve a party or a suitable substitute, and these attempts constitute "reasonable application"¹⁶⁷⁰ (that is, some attempts during working and nonworking hours, different times of day, etc.), conspicuous place, or affix-and-mail, service is permitted.¹⁶⁷¹ If the landlord or process server knows that the tenant will not be at the premises when service is attempted, the attempt does not constitute a reasonable application.¹⁶⁷² Under the RPAPL, conspicuous service may be made by affixing (actual fastening)¹⁶⁷³ the papers to or sliding the papers under the entry door to the subject premises, as opposed to the building's entrance door. While the general rule is that service is defective if the premises sought to be recovered is in a multiple-unit structure, and the papers are affixed to the building entrance or anywhere other than the entrance to the actual premises sought to be recovered, the Appellate Division, First Department, has held that, under certain circumstances, conspicuous-place service may be effected by posting the papers on the building's front door.¹⁶⁷⁴ Although often referred to as "nail and mail" by servers, attorneys, and even judges, actual nailing is generally seen as excessive. ¹⁶⁷⁵

A mailing by both certified and regular mail to each named respondent is required for all forms of service except in-hand personal delivery. However, process servers often mail the pleadings even when there has been an in-hand personal delivery in case the person receiving the process was not, in fact, the respondent, in which case the delivery was, arguably, to a person of suitable age and discretion. While the law sets minimum requirements for service, it imposes no maximum, so the precaution of additional mailings is, at worst, harmless. Thus, whether substituted service or affix-and-mail service is made, mailings must be made to the respondents at the premises sought to be recovered, and an additional mailing must be sent to any other address for the respondents of which the petitioner has written information. A properly addressed mailing includes the apartment number, if a multi-unit building is involved, and the correct zip code.¹⁶⁷⁶ If a mailing is improperly addressed, the landlord must prove it was timely delivered. Service by personal delivery is complete upon delivery.¹⁶⁷⁷ Service by any method other than personal delivery is complete when proof of service is filed with the court. ¹⁶⁷⁸

While the other "alternative" methods of service authorized for plenary actions under CPLR 308, such as service by publication or in another manner directed by the court, are unavailable for preliminary notices in summary proceedings under RPAPL 735, they may be granted for the notice of petition and petition upon a strong showing that the petitioner will be unable to effect RPAPL 735 service.

If a petitioner is ignorant of the identity of a person who should be named as a respondent, the petitioner may proceed against the person by designating so much of the name as is known.¹⁶⁷⁹ Petitioners may not resort to this "John Doe" procedure unless they first exercise due diligence to identify the person by name.¹⁶⁸⁰ If the petitioner knows the respondent's name before the commencement of the proceeding and nevertheless names that person as a John Doe, personal jurisdiction is lacking and the petition is subject to dismissal. ¹⁶⁸¹ While "John Doe" nonpayment proceedings are rare, petitioners routinely name "John Doe" respondents in holdover proceedings so as to assert jurisdiction over all occupants of the premises that may have a claim.

When there is more than one respondent, there must be service of separate copies for each respondent, including any "John Doe" or "Jane Doe." This includes leaving or affixing a separate copy for each respondent and a separate certified and regular mailing for each respondent. Failure to serve separate copies for each respondent is defective service and will result in dismissal. ¹⁶⁸²

At one time, most courts held that a landlord could not obtain a money judgment for rent or use and occupancy when service was by other than personal (in-hand) delivery and the tenant defaulted. But the trend in most courts outside New York City has been to allow the landlord to obtain a money judgment when service is by substituted service or, if by conspicuous-place service, when the service satisfies the CPLR 308 "due diligence" requirements of three valid attempts at service.¹⁶⁸³ If the petitioner's process server exercised only "reasonable application" (two attempts at personal service) to gain admittance to the premises sought to be recovered and effected only conspicuous-place service, a money judgment against a non-appearing tenant (a tenant who failed to answer a nonpayment petition or, in the case of a holdover proceeding, who...