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Donald O'connell v. Eric Singletary

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


March 15, 2011

DONALD O'CONNELL,
RESPONDENT,
v.
ERIC SINGLETARY,
APPELLANT,
AND JACKIE SINGLETARY,
TENANT.

Appeal from a final judgment of the City Court of Yonkers, Westchester County (Charles D. Wood, J.), entered November 12, 2008, deemed from an order of said court (Arthur J. Doran, III, J.) dated August 10, 2009 (see CPLR 5512 [a]).

O'Connell v Singletary

Appellate Term, Second Department

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 15, 2011

PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ

The order denied a motion by Eric Singletary to vacate so much of the final judgment as awarded landlord possession and the sum of $1,549 against him and to dismiss so much of the petition as is against him.

ORDERED that the order is reversed, without costs, and the motion by Eric Singletary to vacate so much of the final judgment as awarded landlord possession and the sum of $1,549 against him and to dismiss so much of the petition as is against him is granted.

After a final judgment was entered against both named tenants in this nonpayment summary proceeding, Eric Singletary (appellant) moved to vacate so much of the final judgment as is against him and to dismiss so much of the petition as is against him. In support of the motion, appellant averred, among other things, that he had not appeared in the proceeding because he had no notice of it; that, with landlord's permission, he had moved out of the premises over a year prior to the commencement of the proceeding; that landlord had thereafter entered into a new rental agreement with appellant's wife for an increased space at an increased rental; and that landlord knew his new address and his place of work but had not served him there. Appellant also submitted, among other things, a copy of the lease for his new premises. In opposition to tenant's motion, landlord failed to submit an affidavit on personal knowledge to dispute appellant's averments. However, landlord's counsel submitted opposition papers in which he claimed, among other things, that "respondent(s)" had appeared in the proceeding. Finding that appellant had appeared on the return date of the petition, a judge of the City Court, other than the one who had presided on the return date of the petition, denied appellant's motion.

Our review of the transcript of the proceedings on the return date of the petition indicates that, contrary to the City Court's determination, appellant did not appear on that date and that only Jackie Singletary appeared on that date.

As appellant's undisputed assertions established that appellant had surrendered his interest to landlord and was no longer residing in the premises, and that landlord had entered into a superseding lease agreement with appellant's wife for an increased space at an increased rental, a summary proceeding could not be maintained as against appellant and jurisdiction over appellant was not obtained by substituted service upon him at the premises pursuant to RPAPL 735 (see generally Warrin v Haverty, 149 App Div 564, 567 [1912] ["It is essential to the jurisdiction of the court to entertain a summary proceeding . . . that the tenant should be in possession"]).

We note, in any event, that, in order to obtain a monetary judgment against a tenant who does not appear in a summary proceeding, a landlord must effect service in a manner sufficient to satisfy the CPLR's requirements for an award of a money judgment in a plenary action (see Avgush v Berrahu, 17 Misc 3d 85 [App Term, 9th & 10th Jud Dists 2007]). CPLR 308 (2) allows service by delivery to a person of suitable age and discretion: "By delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business . . ."

In view of appellant's undisputed showing that he did not reside at the premises at the time the proceeding was commenced, service in this matter was not effected in a manner sufficient to satisfy CPLR 308 (2) because, among other things, the papers were not delivered to a person of suitable age and discretion at appellant's "actual place of business, dwelling place or usual place of abode," nor were the papers mailed to appellant's "last known residence" or to his "actual place of business." Thus, appellant has established that, in any event, the court lacked jurisdiction to enter a monetary judgment against him.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.

Decision Date: March 15, 2011

20110315

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