Powell v Anderson (2012 NY Slip Op 50449(U))

Powell v Anderson

2012 NY Slip Op 50449(U) [34 Misc 3d 1237(A)]

Decided on March 6, 2012

City Court Of Mount Vernon

Seiden, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

The respondent moves by order to show cause for an order reinstating respondent to possession, vacating a warrant of eviction and judgment in favor of the landlord entered against her on December 19, 2011 pursuant to CPLR §5015A and RPAPL §749(3) and dismissing the petition on the grounds that she was never properly served with the Notice of Petition. On the February 23, 2012 return date for the motion both sides appeared and the matter was adjourned to February 27, 2012 for a Traverse hearing.

On February 27, 2012 the evidence presented by petitioner established that respondent was served with the Notice of Petition via conspicuous place service on December 14, 2011 at 7:30 am at 58 South 9th Avenue, Apt. 2N after only two unsuccessful attempts at personal service on December 13, 2011 at 6:10 pm and December 13, 2011 at 8:10 pm. The affidavit further states that the required additional mailing was made on December 14, 2011 as well.

The "nail and mail" method of service pursuant to CPLR § 308(4) may be used only where personal service under CPLR §§ 308 (1) and (2) cannot be made with "due diligence" (Credit Acceptance Corp. v Greve, 15 Misc 3d 1115A (Sup Ct Suffolk Co. 2007) (citing Lemberger v Khan, 18 AD3d 447, 794 (2d Dept. 2005)). After hearing the evidence, the Court finds that the two attempts at personal service prior to the conspicuous place service were made on the same weekday day only two hours apart are insufficient as a matter of law to satisfy the due diligence requirement. See [*2]Gantman v Cohen, 209 AD2d 377 (2nd Dept. 1994) (three personal service attempts on three separate weekdays at 10:50 am, 4:30 pm and 6:36 pm did not meet the "due diligence" standard of CPLR § 308(4); see also Magalios v Benjamin, 160 AD2d 773 (2nd Dept. 1990) (three attempts on three separate weekdays at 9:00am, 5:30pm and 6:00pm insufficient to meet due diligence standard). Further, the petitioner failed to demonstrate that the process server attempted to ascertain the respondent's business address as to effectuate personal service at that location. See Gurevitch v. Goodman, 269 AD2d 355 (2nd Dept. 2000) (three attempts at service on weekdays at 7:22 am and 8:34 pm and Saturday at 3:39 pm at home insufficient where no attempt to ascertain or serve at defendant's business address). As such, this Court lacks jurisdiction over the respondent and respondent's motion must be granted. Accordingly, the warrant of eviction and judgment in favor of the landlord are vacated and the petition is dismissed for lack of personal jurisdiction. The respondent is hereby reinstated to possession of the premises as of the date of this order.