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Department of Housing Preservation and Development v. Li

March 10, 2009

DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT (DHPD), PETITIONER,
v.
JU JIN LI, RESPONDENT.



The opinion of the court was delivered by: George M. Heymann, J.

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

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

QUERY: DOES THE MANNER OF SERVICE PURSUANT TO REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) §735, WHICH GOVERNS THE COMMENCEMENT OF ALL NON-PAYMENT AND HOLDOVER PROCEEDINGS IN HOUSING COURT, APPLY TO "SPECIAL PROCEEDINGS" BROUGHT IN THE "HP" PART BY DHPD AGAINST LANDLORDS TO CORRECT VIOLATIONS?

On March 17, 2007, DHPD commenced this proceeding pursuant to Section 110(a)(9) of the New York City Civil Court Act (NYCCCA) directing the respondent to correct all violations of the Multiple Dwelling Law (MDL) and the Housing Maintenance Code (HMC) existing at the subject premises located at 4824 7th Avenue, Brooklyn, New York 11220; for an order directing the respondent to file a current registration with DHPD; for a judgment for civil penalties for failure to register and for a judgment for civil penalties for failure to correct the violations set forth in the Verified Petition and annexed exhibits incorporated by reference therein.

The respondent failed to appear on the return date of April 17, 2008 and an inquest was taken. On April 30, 2008, an Inquest Order to Correct and Judgment for Civil Penalties in the amount of $157,265.00 was entered against the respondent.

The respondent has now moved by Order to Show Cause to vacate said default judgments and to dismiss the Verified Petition in its entirety.

The respondent claims that she has an excusable default in that service was defective pursuant to RPAPL§735 and a meritorious defense that the violations have been corrected.

DHPD opposes the motion contending that service was properly effectuated and that the respondent has failed to provide any documentation to support her conclusory statements that all the violations have been corrected.

According to counsel for DHPD, the respondent's address for service, 836 58th Street, 2nd Floor, Brooklyn, New York 11220, was taken from the deed for the subject premises, dated June 22, 2007, which lists Ju Jin Li as the Grantee/Buyer. (DHPD Aff. In Opp., Ex. C) The last property registration with DHPD, dated February 16, 2006, was filed by the previous owner. (Verified Petition, Ex. 3)

At issue here is the manner of service attested to by the process server in his affidavit of service, as follows:

"That on March 28, 2008 at 9:17 AM at 836 58 Street 2nd Floor; Brooklyn, NY 11220 (Last Known Residence) I served the Notice of Petition and Verified Petition upon Ju Jin Li respondent herein named by affixing the same upon the door.

That prior attempts to serve the respondent were made on March 26, 2008 at 6:45 PM and March 27, 2008 at 7:46 AM and March 28, 2008 at 9:17 AM

That on April 2, 2008 I deposited in the United States mail a true copy or copies of the Notice of Petition and Verified Petition properly enclosed and sealed in a post paid wrapper addressed to respondent at 836 58 street 2nd Floor; Brooklyn, NY 11220 (Last Known Residence)by first class mail, marked ...


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