The above captioned matters are Summary Proceedings wherein Petitioner-Landlords commenced proceedings against the respective Respondent-Tenants for removal and money judgments for rent owed. In all of the above cases, attempts were made to serve said Respondents via in-hand personal delivery. However, after several unsuccessful attempts, each Respondent was served by a process server who affixed a copy of the applicable Petition to the door of the respective subject premises. A copy of said Petition was subsequently mailed to each such Respondent by either regular or certified mail. In each instance, the Respondent defaulted in appearing at his hearing and a Warrant of Eviction was entered against him. Each of the Petitioners now seek judgment against their respective Respondents.

The common issue presented in each of the above cases is whether in a Summary Proceeding a money judgment may be entered against a Respondent who defaults after receiving a Petition and notice of Petition by substituted or duly diligent conspicuous service.

The black letter law on this issue was set forth in Matter of McDonald (225 AD 403 [4th [*2]Dept. 1929]). In McDonald, the Fourth Department determined that in Summary Proceedings money judgments for rent due can be granted only when the defendant has been personally served or has voluntarily appeared (Id. at 405). In making its decision, the McDonald Court rejected the straightforward statutory language of Section 1421 of the Civil Practice Act, as amended by chapter 513 of the Laws of 1924 (the Civil Practice Act was repealed in 1963 and became the Civil Practice Law and Rules). In rejecting the plain language of the statute, the Court based its opinion on its interpretation of the statute's legislative intent (Id. at 405-406).

The McDonald Court noted that the Legislature recently amended the Civil Practice Act so as to combine into one Summary Proceeding the action to obtain possession of the premises and the action for rent in arrears (Id. at 406). At that time, in order for a default judgment to be entered against a party, they had to have either been served by personal or by Court authorized substituted service. The Court stated, in relevant part, "[t]he uniform practice in this State in relation for a personal judgment, so far as we know it, permits substituted service be made only when authorized by the Court in the particular case" (Id.). The Court further stated that "[t]o construe the section broadly and allow a money judgment to be obtained on what we may call substituted service, justified solely by the affidavit of the process server without the sanction of an order of the court, would be to incorporate into our law a novel practice and to break down a long-established uniformity" (Id.).

It was significant to the McDonald Court that the case involved non-resident commercial tenants (Id.). The McDonald Court, basing its determination upon fairness to non-resident commercial tenants, felt that personal jurisdiction could not be achieved through substituted or duly diligent conspicuous service. In making its decision, the McDonald Court was influenced by the then current state of the law as set forth in Pennoyer v. Neff (95 US 714 [1877]).

According to the Court in Pennoyer, a personal judgment could be entered against a non-resident only if he was personally served or voluntarily appeared. Any other means of serving a non-resident would be considered a violation of the individual's due process rights(Id. at 733-734). The Pennoyer case is no longer valid law and obtaining jurisdiction by means of the subject statute is no longer "novel." Furthermore, case specific authorization of substituted service is no longer the practice nor the uniform law in this State. It would seem to follow that the cases that relied upon Pennoyer should now be reconsidered in light of current law. Moreover, the above captioned matters, as well as a plethora of cases involving this issue, pertain to residential tenants, rather than non-resident commercial tenants. Clearly, service of process to residential tenants by substitute or duly diligent conspicuous service at the residence at issue should be more than sufficient to put such resident tenants on notice of a money judgment, as well as the action for possession.

Since the McDonald decision, the legislature has modified the required standards for service and enacted safeguards for plenary actions and summary proceedings.In a well reasoned decision originating in New York City Civil Court, the Honorable Gerald Lebovits explains the procedural safeguards that prove contrary to the reasoning set forth in the McDonald case (see Dolan v Linnen, 195 Misc 2d 298 (Hous. Part Civ. Ct. Richmond County 2003)). In Dolan, Judge Lebovits wrote, in relevant part:

[i]n repealing and reenacting in 1954 Civil Practice Act § 1421, RPAPL 735's predecessor, the Legislature removed the requirement that "reasonable diligence" be exercised in attempting in-hand or substituted service before resorting to conspicuous service in a summary proceeding and replaced [*3]it with a "reasonable application" standard. (Civil Practice Act § 1421 [1927].) As of 1954, "reasonable application" became the standard to serve a person of "proper age and discretion" to accept substituted service. Alternately, if personal delivery was not possible and substituted service after "reasonable application" proved fruitless, conspicuous service could be used.

On September 1, 1963, the Legislature repealed the Civil Practice Act and enacted the Civil Practice Law and Rules. (CPLR 10001.) The overhaul moved sections from the Civil Practice Act that governed property and summary proceedings to the RPAPL, where article 7 now governs summary proceedings. (L 1962, ch 142.) The 1963 CPLR 308 controlled "Personal service upon a natural person" and made personal delivery the preferred service method. Both substituted service and conspicuous service could be used only when in-hand service could not be made "with due diligence." (CPLR former 308 [1963].)

(Id. at 313). Judge Lebovits also opined that:

[a] clear contrary indication to McDonald is RPAPL 735's 1965 amendment which changed personal service in summary proceedings from providing that service be performed as in a plenary action to requiring RPAPL 735 service. (L 1965, ch 910, §§ 7-8.) The Legislature struck text that service shall be made "in the same manner as personal service of a summons in an action." (L 1965, ch 910, § 7.) In its place, the first sentence of RPAPL 735 (1) reads: "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 ... if upon reasonable application admittance can be obtained."

(Id. at 314-315). It is clear from the foregoing that the legislature has made modifications and added safeguards to the relevant service of process requirements.

Judge Lebovits also noted that at one time McDonald may have represented good law (Id. at 300). However, he concluded, given the current law and policy implications, "McDonald and its progeny represent the opposite [of good law]" (Id.). This court is persuaded by the opinion and logic set forth in Dolan. In Dolan, the Court reasoned that:

[d]enying money judgments after good service helps only tenants who intentionally default. Tenants who find themselves in serious arrears can avoid in-hand personal delivery and decline to appear in court. The unhappy event of eviction is then tempered by the reality that money owed might never be sought. That discourages tenants from appearing and renders the court impotent to do justice. Granting money judgments after substituted or duly diligent conspicuous service improves service. To get money judgments, landlords will encourage process servers to effectuate better service than mere reasonable-application service. Better service will result in personal or substituted service more often than not. That will reduce the possibility that a process server will effect sewer service, lessen the chance that tenants will not answer or appear, and decrease the uncertainty that a judge who signs a default warrant will cause a tenant to be evicted without notice.

(Id. at 299).

The current law and practice in this State with respect to civil actions is to allow for [*4]default judgments where there is only substituted service without the technical requirement of a case specific court order allowing for such service. There seems to be no valid legal reason to continue to hold that there can be no money judgment after a resident Respondent tenant has defaulted in a summary proceeding where there has been substituted or duly diligent conspicuous service. "It is somewhat ironic that the standard for service of process for a possessory judgment is less stringent than that for a money judgment. The possessory judgment granted in a summary eviction proceeding authorizes forcible eviction of the respondent from her/his home, a matter of far greater importance, in most instances, than the interest in avoiding a money judgment" (Andrew Scherer, Residential Landlord-Tenant Law in New York § 15:12, at 15-7 [2003 ed] [Fern Fisher, View from the Bench]).

It seems disconnected that a defendant can be physically removed from the premises after receiving substituted or duly diligent conspicuous service of the summary proceeding but, where a money judgment is concerned, the same service would be insufficient. The reasoning in McDonald is even tougher to justify when you consider that the Uniform City Court Act provides that mailing a copy of small claims summons by regular and certified mail to a defendant is sufficient notice to give the court jurisdiction to enter a default judgment against the defendant for up to $5,000. Yet, if that same defendant were the Respondent in a Summary Proceeding and had a copy of the Petition taped to his door at the subject residence and then mailed to him at such address, a money judgment could not be entered against him if he defaulted. This Court concludes that this is illogical.

Based upon the foregoing, this Court finds that after numerous attempts were made to serve the subject Respondents via in-hand personal delivery, the duly diligent conspicuous service was sufficient to put each of the Respondents on notice of the applicable Summary Proceeding, and the money judgments requested in each case are hereby granted against the respective defaulting Respondents.

__________________________

Thomas M. DiMillo

Lockport City Court Judge

Dated: August 15, 2007

Lockport, New York