The opinion of the court was delivered by: COOPER
This action challenges the constitutionality of the New York statutory scheme which sets forth the procedure for summary proceedings to recover possession of real property by the landlord for nonpayment of rent. § 732 of the Real Property Actions and Proceedings Law (RPAPL), McKinney's Consol. Laws, c. 81 the heart of the repossession procedure, provides that if a tenant has defaulted in the payment of rent, the landlord may institute a summary proceeding for repossession,
by service of a notice of petition and petition upon the tenant returnable before the clerk of the Court five (5) days after service.
The petition must be verified and include a recital of the factual basis of the claim, § 741 RPAPL;
the notice of petition may be issued only by a judge or clerk of the Court.
Upon the return date, if the tenant interposes an answer, the clerk sets a trial date not less than three nor more than eight day after joinder of issue. § 732(2) RPAPL. However, if the tenant fails to answer within five days from the date of service, as shown by the affidavit or certificate of service of the notice of petition and petition, the judge is directed to render judgment in favor of the petitioning landlord. § 732(3) RPAPL.
Upon a final judgment for the petitioner, after trial on the merits or default by the tenant, the court issues a warrant directing the City Marshal to remove the tenant and return full possession of the premises involved to the landlord.
§ 749(1) RPAPL. Further, if the determination after hearing is for the landlord, the issuance of a warrant cannot be stayed for more than five days therefrom; if the judgment is rendered upon the tenant's default, the court may stay the issuance of the warrant for a period not exceeding ten days from the date of service. § 732(2)(3) RPAPL.
The focus of plaintiffs' attack is aimed at § 735 RPAPL, which establishes the requisite manner of service upon the tenant of the notice of petition and petition. § 735 provides in pertinent part:
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; or if admittance cannot be obtained and such person found, by affixing a copy of the notice and petition upon a conspicuous part of the property sought to be recovered; and in addition, within one day after such delivering to such suitable person or such affixing, by mailing to the respondent.
Plaintiffs assert that this notice provision suffers from a variety of constitutional defects. They attempt to support this by allegations in essence as follows.
Plaintiff De Sapio instructed the building superintendent to apply the deposit of two months' security (paid when she leased the apartment) to payment of the last two months rent under her lease. On January 29, 1970, Mrs. De Sapio learned for the first time that her instruction had not been heeded; on that day she was served with a warrant of eviction. Plaintiffs allege that process server Leo Georgio in fact never served Mrs. De Sapio with the requisite notice of petition and petition; that a default judgment was entered of record without an opportunity afforded her to appear, be heard, explain or satisfy the rent due.
Repossession of the apartment occupied by plaintiff Ramirez occurred in a similar fashion. Miss Ramirez had intentionally withheld payment of one month's rent in order to prevail upon her landlord to repair a window broken when burglars entered her apartment. Process server Louis Karp, plaintiffs allege, never effected service of the notice of petition and petition upon Miss Ramirez (they furnish an impressive recital in support thereof). As with Mrs. De Sapio, the first notice she received of the summary dispossess proceeding was the warrant of eviction.
Plaintiff Shepard, on April 18, 1970 received a petition of eviction in the mail informing him to appear in court on April 20, 1970. Shepard's mailing on May 11, 1970 of the rent due proved futile, for less than one month after commencement of proceedings he and his family were evicted.
In the case of the fourth plaintiff, Mr. Velazquez, suit was commenced June 10, 1970 to recover $115.24, $107.26 of which represented the unpaid June rent. His rent allowance by the Department of Welfare prior to June totaled only $92.40. He applied that sum ($92.40) on June 16, 1970 to the rent due, and on July 1, 1970 paid $145.18 more upon receipt of an additional appropriation for increased rent from Welfare On July 8, 1970, plaintiff Velazquez and his family were evicted.
On the basis of these and numerous other evictions (alleged in general terms) entered upon the default of tenants complaining of no prior notice of the summary proceeding, plaintiffs commenced this action seeking at this time, pursuant to Rule 65, F.R. Civ. P., a preliminary injunction enjoining defendant Silberzweig from excluding plaintiff Velazquez from the apartment the Velazquez family previously occupied and rerenting these premises to any other persons; and enjoining Hon. Edward Thompson, Administrative Judge of the Civil Court of the City of New York, from permitting the entry of summary default judgments for possession in that court unless process is served with due diligence and an inquest taken as to such service, and unless a prima facie case on the merits of the petition is established; further, notice of any resulting summary default judgment must be served upon the defendant who is then to be provided a reasonable time to ...