SUBSTITUTED SERVICE IN FAMILY COURT CASES
SUBSTITUTED SERVICE UNDER CPLR 308(2) IN CIVIL ACTIONS AND UNDER RPAPL 735(1) IN SUMMARY PROCEEDINGS: A COMPARATIVE ANALYSIS, WITH SOME OBSERVATIONS ON SERVICE UNDER FAMILY COURT ACT SECTION 427(a)
PART 2 of 3
By David Calender, Esq.,
Attorney at Law
Founder and Chief Executive Officer, New York Case -Winning Strategies, LLC
In Part 1 of this three-part article,
we provided a comparative analysis of deliver-and-mail substituted service
under CPLR 308(2) and Section 735(1) of the Real Property Actions and
Proceedings Law (RPAPL). In this Part 2, the focus will be on a little-known
but critically important provision of RPAPL Section 735(1) which has resulted
in the dismissal of many a Summary proceeding, to the delight of the tenant’s
attorney and the chagrin of counsel for the landlord.
Scope and Operation of RPAPL Section
735(1) in Summary Proceedings
Generally, there are two types of summary proceedings: (1) non-payment
proceedings and (2) holdover proceedings. A discussion of the requisite
elements of each, including the contents of predicate notices, is beyond the
scope of this article, which focuses on the service methods necessary to
validly initiate legal proceedings and, relatedly, whether personal
jurisdiction is acquired in certain situations. Suffice it to say that the
rules governing service of process are the same in both non-payment and
holdover proceedings. In both cases, the “process” that is required to be
served in order to confer jurisdiction over the tenant (“respondent”) is a
Notice of Petition and Petition.
However, it should be noted that, in New York City, before those
documents are filed, Section 232-a of the Real Property Law (RPL) requires that
a written predicate notice (“Notice Terminating Tenancy” or “Notice to Quit”)
be served on the tenant, and that such Notice be served on the tenant
“in the same manner as the Notice of Petition and Petition,” notwithstanding
that a Notice to Quit is technically not “process” as defined by statute.
Accordingly, the rules described below for service of a Notice of Petition and
Petition in Summary proceedings apply with equal force to service of a
predicate Notice to Quit/Notice Terminating Tenancy and failure to serve it in
the same manner as the Notice of Petition and Petition will result in dismissal
of the proceeding.
Whereas CPLR 308(2) prescribes the method for deliver-and-mail
substituted service upon an individual defendant in a civil action, the rules
governing that category of substituted service in Summary proceedings are set
forth in Section 735(1) of the Real Property Actions and Proceedings Law. There
are essentially three authorized methods to serve the Notice of Petition and
Petition: (1) personal delivery upon the respondent; (2) substituted service
a/k/a deliver-and-mail service; or (3) conspicuous place service, otherwise
called “nail-and-mail” or “affix-and-mail” service. It should be borne in mind
that the third category, i.e., conspicuous place service a/ka/a nail-and-mail
or affix-and-mail service, is also a method of substituted service. However,
that service method will be discussed in a later article and we are here
concerned only with the second referenced method, deliver-and-mail.
The deliver-and-mail method of substituted
service is authorized by Section 735(1) of the RPAPL as follows:
Section 735. Manner of service;
filing; when service complete
1.
Service of the
notice of petition and petition shall be made by personally delivering them to
the respondent; or by delivering to and leaving personally with a person of
suitable age and discretion who resides or is employed at the property sought
to be recovered, a copy of the notice of petition and petition, if upon
reasonable application admittance can be obtained and such person found who
will receive it; . . . [followed by mailing copies to respondent within one
day by registered or certified mail and by regular first class mail and filing
proof of service with the court within three days after]. (italics added)
Careful
perusal of the foregoing statutory language reveals four significant features.
First, the delivery component of the deliver-and-mail procedure must take
place, not at the respondent’s actual place of business, dwelling place or
usual place of abode as is the case with CPLR 308(2) service, but “at the
property sought to be recovered.”
Second,
should the process server learn that the individual who answers the door is not
the respondent him/herself and thus resort to the deliver-and-mail method, the server
must ascertain that the individual who accepts delivery of the papers actually
“resides or is employed” at the premises. There is no such requirement in CPLR
308(2); the person who takes delivery need only be “at” the premises at the
time of accepting delivery of the papers.
Third, the follow-up mailing required
by RPAPL 735(1) must be by registered or certified mail and by regular
first-class mail, whereas the mailing provision in cases under CPLR 308(2)
require only regular first-class mailing.
Fourth, under RPAPL 735(1), proof of mailing must be filed with the court
“within three days after the mailing” (service is deemed complete upon filing,
per RPAPL 735(2)(b)); whereas, under CPLR 308(2), twenty days is provided for
the filing of proof of mailing, and service is deemed complete ten days after
such filing.
A recent decision, dated May 17, 2023,
that illustrates the court’s application of the “resides or is employed”
requirement of RPAPL 735(1) – with disastrous results for the landlord and its
process server – is the case of Wilmington Trust, N.A. v. Walcott, et al.
(NYSCEF Index #L&T 301234/20), a decision of the Civil Court, Queens
County, Housing Part. In Walcott, a post-foreclosure holdover
proceeding, the court conducted a traverse hearing on March 30, 2023 to
determine whether the tenant was properly served with process (in this case a
Notice to Quit) by the deliver-and-mail method pursuant to RPAPL Section
735(1). (Trial attorneys interested in mastering this aspect of civil litigation
may obtain sample Traverse Hearing transcripts at www.newyorkcasewinningstrategies.com.)
The process server, who had 25 years of experience, testified that he
delivered the papers to a young black male, who did not identify himself, and
thereafter mailed a set of the papers addressed to the tenant at the premises
sought to be recovered. The tenant, a 73-year-old man, testified that he
resided at the subject premises with his wife and that no other male resided at
the premises. He denied ever receiving the Notice to Quit. Asked about the
young black male described in the process server’s Affidavit of Service and
about whom the server testified, the tenant stated that no one resided at the
premises besides his wife and himself.
The court, crediting the testimony of the tenant, held that service of
the Notice to Quit was invalid and dismissed the proceeding without prejudice.
The court concluded that dismissal was warranted because the process server
failed to offer any testimony that the young black male whom he purportedly
served actually resided at the subject premises at the time of the
service.
The newly-minted Walcott
decision should be seen by the New York practitioner and process server in
landlord-tenant cases as a cautionary tale: all deliver-and-mail service is not
created equal. While the validity of CPLR 308(2) service in other civil actions
simply requires that the suitable age/discretion person be “at” the premises
when the papers are delivered, if the very same method of service is utilized
in L&T proceedings, counsel for the landlord facing a challenge to personal
jurisdiction must be prepared to prove by a preponderance of the credible
evidence that the person served actually resided or was employed at the subject
premises at the time of the service. Failure to carry that evidentiary burden
at a traverse hearing will result in dismissal of the proceedings on
jurisdictional grounds, albeit without prejudice.
An appreciation of the subtle
distinction, discussed in this article, between CPLR 308(2) substituted service
and its parallel provision in RPAPL 735(1) is particularly important for the
New York attorney and process server on both sides of the litigation divide in
Landlord-Tenant proceedings in 2023, where the number of people who are due to
lose their homes in post-foreclosure eviction proceedings is on the rise.
Now that the pandemic’s renter protection programs have expired, eviction
filing rates are soaring. According to real estate statistics compiled by ATTOM
Data, nearly 100,000 foreclosure actions have been filed nationwide through
March 31, 2023 – the twenty-third consecutive month, with the rate
accelerating. Nationwide, lenders started the foreclosure process on 21,770
U.S. properties in January 2024, up 6 percent from December 2023 and up 5
percent from a year ago (January 2023).
New York State is among the states with the most foreclosure filings,
ranking in the top 5 states (1,341 foreclosure starts in January 2024). In New
York City, the “Big Apple” recorded the highest number of lenders of all U.S.
Cities who started the foreclosure process in January 2024.
As for renters, New Yorkers are faring no better than homeowners: in 40
of the State’s 62 counties, the eviction filings for renters were higher in
2022 than before the pandemic. In two counties, filings to evict tenants more
than doubled when compared to 2019.
Attorneys representing litigants in foreclosure actions in New York State
Supreme Court as well as in post-foreclosure eviction proceedings would do well
to remember the process service rules discussed in this article.
#personaljurisdiction
#serviceofprocess
#substituted service
#cplr308
#rpapl735
#fca427
#foreclosure
#evictions
This
is Part 2 of a 3-Part article on the “deliver-and-mail” method of substituted
service in New York Civil Practice. In Part 3, we will broaden our analysis of
the methods of deliver-and-mail service provided for in CPLR 308(2) and RPAPL
735(1) by examining the provisions of Section 427(a) of the Family Court Act --
focusing on whether, and to what extent, the substituted service provisions of
the latter differ from those of CPLR 308(2) and RPAPL 735(1).
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