The petitioner has commenced the instant summary proceeding against the respondents, David Berg, Tanya Berg, John/Jane Doe, based upon the respondents' alleged failure to pay rent for the premises located at 210 Washington Ave., Apt B3, Cedarhurst, NY. The Notice of Petition seeks a judgment of possession, the issuance of a warrant of eviction, a money judgment for rent arrears in the sum of $10,853.18, reasonable attorney's fees in a sum no less than $2,170.50 plus costs and disbursements.

The respondents move to dismiss the proceeding pursuant to CPLR §3211(a)(1), a defense founded upon documentary evidence, (a)(7) the pleading fails to state a cause of action, and (a)(8) the Court lacks personal jurisdiction over the respondents. The respondents also move to dismiss pursuant to RPAPL §§711 and 735 in that the three day rent demand served by the petitioner is defective as a matter of law. In addition, the respondents move to dismiss the petition pursuant to CPLR §3126 or in the alternative compelling the petitioner to serve a verified bill of particulars pursuant to CPLR §3042. Lastly, the respondents seek leave to conduct disclosure pursuant to CPLR §408 and seek the award of reasonable attorney's fees.

The petitioner opposes the respondents' motion and cross moves for an order denying respondents' motion it its entirety; striking the respondents' jury demand; finding respondents' conduct frivolous and granting petitioner an award of attorney's fees in the sum of $2,100.00 dollars. [*2]

The parties entered into a written renewal of a lease agreement on or about April 1, 2009. The agreed upon rent is $1,456.56 per month payable on the first of each month. The petition alleges that the respondents defaulted in the payment of rent for April 2009 through November 2009 and that the outstanding balance is now $10,853.18 dollars. Included in this amount are late fees of $200.00 dollars.

The respondents move to dismiss this summary proceeding pursuant to RPAPL §§711 and 735 upon the grounds that the three day demand for rent was not sufficiently served in accordance with RPAPL 735.

RPAPL §711(2) states, in pertinent part, as follows:

. . . A special proceeding may be maintained under this article upon the following grounds: (2) the tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held, and a demand of the rent has been made, or at least three days' notice in writing requiring, in the alternative, the payment of the rent, or possession of the premises, has been served upon him as prescribed in section 735.

Service of a three day rent demand notice is a statutory predicate for a summary non-payment proceeding (RPAPL §711[2]). A statutory rent demand is one of the facts upon which a special proceeding is based (RPAPL §741[4]). The minimum statutory requirements for a rent demand required by RPAPL §711in order to maintain a summary proceeding, is that the petitioner make a three day personal demand or serve a written demand on the tenant requiring the payment of rent due or possession of the premises.

If a written demand is made, the demand must be served pursuant to the provisions of RPAPL §735 which require the written notice be personally delivered to the respondents. If after reasonable application personal delivery of the demand cannot be effectuated, then the demand must be served by substituted service on a person of suitable age and discretion or by conspicuous placement on the entrance door of the premises and in addition within one day by mailing to respondents both by registered or certified mail and by regular first class mail (RPAPL §735[1]).

Absent proof of a personal demand or a proper three day written notice pursuant to RPAPL §711(2), a nonpayment petition is jurisdictionally defective and must be dismissed (Pepe v. Miller & Miller Consulting Actuaries, 221 AD2d 545, 634 NYS2d 490 [2d Dept 1995]; Solack Estates, Inc. v. Goodman, 102 Misc 2d 504, 425 NYS2d 906 [App Term 1st Dept 1979]; Martine Associates LLC v. Minck, 5 Misc 3d 61, 785 NYS2d 648 [App Term 2d Dept 2004]). A landlord must in the first instance both allege and prove that he has complied with the statutory condition precedent in order to become entitled to possession [*3](see, Solack Estates, Inc., v. Goodman, 102 Misc 2d 504, 425 NYS2d 906 [App Term 1979] affd 78 AD2d 512, 432 NYS2d 3 [1st Dept 1980]). The demand requirement ensures that tenants receive sufficient notice of the nature of the alleged default to permit timely cure and avoid unnecessary litigation (see, L.D. Realty Assoc v. Jorrin, 166 Misc 2d 175, 632 NYS2d 441 [Civ Ct NY County 1995] affd 169 Misc 2d 292, 650 NYS2d 67 [App Term 1st Dept 1996]).

Paragraph 5 of the petition herein, states that the "rent has been demanded in writing from respondent tenant since the same became due". While the respondent, David Berg, admits to receiving a Demand for Rent personally, he contends that his wife, Tanya Berg, failed to received the first class mailing made on November 20, 2009.

To begin with, the petitioner has annexed the affidavit of the process server, Mary Lucere, which attests that on November 10, 2009 at 99 Main Street, Hempstead, New York the respondent, David Berg, was personally served with a three day rent demand. This affidavit constitutes prima facie evidence of proper service (Sando Realty Corp. v. Aris, 209 AD2d 682, 619 NYS2d 140 [2d Dept 1994]; City of New York v. Miller, 20 Misc 3d 1117[A], 867 NYS2d 15 [2008]). Moreover, as previously stated, the respondent, David Berg, concedes that he was personally served. Thus, the Court finds that service of the three day rent demand was properly made upon the respondent, David Berg.

With regard to Tanya Berg, the petitioner has annexed the affidavit of the process server, Lois Luciere, which states that on November 20, 2009 a three day demand for rent was affixed to the premises and following on November 20, 2009 a mailing was made by first class and certified mail. Copies of both are contained in the file. This affidavit constitutes prima facie evidence of proper service (Sando Realty Corp. v. Aris, 209 AD2d 682, 619 NYS2d 140 [2d Dept 1994]; City of New York v. Miller, 20 Misc 3d 1117(A), 867 NYS2d 15, [2008]

The respondent, Tanya Berg, admits to receiving the three day rent demand affixed to her door and admits to receipt of the certified mailing, but she contends that she never received the first class mailing. However, her conclusory denial of non receipt is insufficient to rebut the presumption of mailing. It is well settled that proof that an item was properly mailed gives rise to a rebuttable presumption that it was actually received by the addressee (see, generally, New York and Presbyterian Hospital v. Allstate Insurance Company, 29 AD3d 547, 814 NYS2d 687[2d Dept 2006]). Accordingly, the Court finds that the three day rent demand was properly served upon Tanya Berg in accordance with RPAPL §§711 and 735.

Next respondents claim that the three day rent demand is defective in that it did not [*4]properly specify the amount of rent due.

The goal behind the demand requirement is that a tenant be fairly afforded notice so that he or she may be able to remedy the default and prevent litigation(1675 Realty Co. Quinones, 576 NYS2d 995, 152 Misc 2d 393 [Civ Ct, Bronx County 1991]; citing to Zenila Realty Corp. v. Masterandrea, 123 Misc 2d 1, 472 NYS2d 980). At a minimum, the landlord or his agent should clearly inform the tenant of the particular period for which the rent payment is allegedly in default and the approximate good-faith sum of rent due at the time of the request. Moreover, as far as the actual language is concerned it is not necessary that the precise sum of rent due be demanded. A demand for less than the amount actually due can not be held insufficient on that ground alone (see, Schwartz v. Weiss -Newell, 386 NYS2d 191, 87 Misc 2d 558 [Civ Ct NY County 1976]). Several Courts have decided further that in certain circumstances a landlord's failure to state the exact amount due does not make the demand statutorily deficient (Ranallo v. Burns, 550 NYS2d 192, 157 AD2d 936 [3d Dept 1990]).

In the present case, respondents contend that the petitioner failed to accomplish the aforementioned requirement by its demand, in that it seeks more than is due for rent. However, this Court concludes that the period for which the rent was demanded did not preclude the tenant from receiving a reasonable opportunity to remedy the default and prevent litigation. The notice provided that the respondents owed the sum of $13,023.68 as follows:

November 2009 - $1,456.66; October 2009 - $1,456.66; September 2009 - $1,456.66; August 2009 - $1,456.56; July 2009 - $1,456.56; June 2009 - $1,456.56; May 2009 - $1,456.56 and April 2009 - $456.56; Late Fees - $25.00 for eight months = $200; Legal Fees as per paragraph 17 of the Lease - $2,170.50.

Accordingly, the demand is proper and is not so deficient that it merits a dismissal of the instant case.

The respondents next move to dismiss this proceeding upon the grounds that the Petition and Notice of Petition were improperly served in that the process server failed to make a reasonable attempt at personal service prior to resorting to nail and mail service.

The Notice of Petition in a special proceeding is the equivalent of a summons in a plenary action (Chalfonte Realty Corp. v. Streator, Inc., 142 Misc 2d 501, 537 NYS2d 980 [Civ Ct NY County 1989]). A central purpose of the Notice of Petition is to give the respondents adequate notice of the time, place, and manner in which to respond to a proceeding being commenced against them (RPAPL §731[2]; CPLR §403[a]). The Notice [*5]of Petition must state specifically that a hearing will be held at a particular part of the court, on a particular date, at a particular time and that at that hearing the respondents must interpose their defenses and counterclaims or risk their preclusion (22 NYCRR §212.42[b]; Chalfonte Realty Corp. v. Streator, Inc., supra , 142 Misc 2d at 502).

The respondents are entitled to this basic information when the petitioner serves the Notice of Petition (Parker v. Mack, 61 NY2d 114, 472 NYS2d 882 [1984]). A respondent's actual notice, through their attorney or other means, of when and where the hearing will be held and where they must answer is no substitute for "compliance with the statutory prescriptions for commencement" of a proceeding against them (Parker v. Mack, supra , 61 NY2d at 117).

Moreover, many Courts have held that conspicuous place service may not be used until a reasonable application has been made to effect service either by personal delivery or substituted service (see, House of Brewery Corp., v. Ensley, 182 Misc 2d 471, 698 NYS2d 816 [1999]; Manhattan Embassy Co., v. Embassy Parking Corp., 164 Misc 2d 977, 627 NYS2d 245 [1995]).

In fact, it is well settled in the Second Department that at least two attempts at personal service, one during normal working hours and one attempt when a person working normal business hours could reasonably be expected to be home, are required to satisfy the "reasonable application" standard (RPAPL §735[1]; Martine Associates LLC v. Minck, 5 Misc 3d 61, 785 NYS2d 648 [App Term 9th and 10th Jud Dist2004]; citing to, Eight Assoc v. Hynes, 102 AD2d 746, 476 NYS2d 881 [1st Dept 1984] affd 65 NY2d 739 [1985]; Hynes v. Buchbinder, 147 AD2d 371 [1989]).

In Martine Associates LLC v. Minck, 5 Misc 3d 61, 785 NYS2d 648 [App Term 9th and 10th Jud Dist 2004] the Court stated:

The affidavit of service of the notice of petition and petition alleged a single attempt at personal service, at 1:30pm on August 5, 2003 before the process server resorted to affix and mail service. The inadequate affidavit of service of the petition could warrant the petition's dismissal for a lack of jurisdiction.

In Dolan v. Linnen, 195 Misc 2d 298, 753 NYS2d 682 [2003], the Court discussed what constitutes due diligence to award a money judgment in a summary proceeding. The court in relying upon the case of Brooklyn Heights Realty Com v. Gliwa, 92 AD2d 602, 459 NYS2d 793 [2d Dept 1983] stated that "CPLR 308's due-diligence in attempting to effect in- hand or substituted service before effecting conspicuous service contrasts with RPAPL 735's lower reasonable application standard. Under RPAPL 735, although the effort the process [*6]server must make is less than that required under CPLR 308[4][due diligence], the effort must have some expectation of success. The attempt must be made at a time when the process server could reasonably expect someone to be home".

Thus in Dolan, supar, Court held that:

"one attempt at in-hand or substitute service must be made during working hours, between 8:00 am and 6:00 pm and a second in the morning between 6:00 am and 8:00 am or in the evening between 6:00 pm and 10:30 pm in order for the reasonable application' standard set forth in RPAPL 735 to be met (1199 Housing, 136 Misc 2d at 691, 520 NYS2d 93).

Moreover, in Brooklyn Heights Realty Com v. Gliwa, 92 AD2d 602, 459 NYS2d 793 [2d Dept 1983], the Appellate Division Second Department had occasion to discuss the meaning of the "reasonable application" standard. In doing so, the Court stated:

We affirm upon the ground that proper service of the notice of petition and petition was never effectuated and therefore the defense of lack of personal jurisdiction asserted in Rogal's answer should have been sustained. Service was made by affixing the notice of petition and petition to the door of the apartment and by thereafter mailing the same pursuant to RPAPL 735. Before taping the notice to the apartment door, the process server rang the doorbell, but no one answered. This attempt at service took place on Monday, August 28, 1980, at 3:40 P.M. Under RPAPL 735, a "reasonable application" must be made to effect personal or substituted service before resort is taken to conspicuous service. While the effort the process server must make is less than that required under subdivision 4 of CPLR 308 ("due diligence"), the effort must have some expectation of success (Palumbo v. Estate of Clark, 94 Misc 2d 1, 403 NYS2d 874). The attempt must be made at a time when the process server could reasonably expect someone to be home (Parkchester Apts. Co. v. Hawkins, 111 Misc 2d 896, 447 NYS2d 194). Here, personal service was attempted at a time when most people are at work. Moreover, the process server had previously attempted to serve process during normal working hours but had similarly found no one at home. Hence, on this occasion, the process server could not have reasonably expected that he would succeed in effectuating personal service.

Thus, when a particular service is challenged, a Court must evaluate the validity of that service under the constitutional standard of whether the service "is one reasonably calculated, under all the circumstances, to apprise the interested party of the pendency of the action" (see, Bossuk v. Steinberg, 58 NY2d 916, 460 NYS2d 509 [1983]; quoting Mullane v. Central Hanover Trust Co., 339 US 306, 70 SCt 652 [1950]; Fashion Page v. Zurich Ins. Co., 50 NY2d 265, 428 NYS2d 890 [1980]). [*7]

Applying the above to the case at bar, this Court holds that service upon the Respondents with one attempt November 30th at 6:02 p.m. and service on December 1, 2009, at 11:00 a.m. meets the criteria of applicable case and RPAPL 735 is good service.

The jury demand is stricken because the same is waived pursuant to lease paragraph 23, which contains a jury waiver clause. See Birchwood Associates v. Steigauf, 75 Misc 2d 728, 348 NYS2d 900 (Dist Ct, 1973).

Respondent's motion to dismiss is denied in all respects.

The cross motion is granted to the extent that the jury demand is stricken. No sanctions will be granted.

This case is set down for non-jury trial for February 17, 2010, at 11:00 a.m.. There will be no adjournments of the trial.

The Court declines to award any sanctions.

This Constitutes the Decision and Order of the Court.

So Ordered:

/s/

DISTRICT COURT JUDGE

Dated:January 27, 2010