Recitation, as required by CPLR 2219(A), of the papers considered in the review of this Notice of Motion:PAPERS NUMBEREDNOTICE OF MOTION AND AFFIDAVITS ANNEXED ORDER TO SHOW CAUSE AND AFFIDAVITS & AFFIRMATION ANNEXED 1ANSWER AFFIRMATIONREPLYING AFFIRMATIONEXHIBITSSTIPULATIONSOTHER Answer, Affirmation Of Service 3, 2DECISION/ORDER Upon the foregoing cited papers, the Decision/Order in this oral application to dismiss is as follows: Petitioners commenced this proceeding seeking the appointment of a 7A Administrator for the property at 272 Stagg Street, Brooklyn, New York (“Premises). Silvio Cruz (the “Respondent”) appeared on the return date of the Motion and sought an adjournment to obtain an attorney. Over the objections of Petitioner’s counsel, the application was granted.On the return date, counsel for the Respondent requested an adjournment to submit an answer. The Court issued an Order on March 12, 2018 which granted the application for an adjournment, leave to serve and file an answer and lifted a portion of the Temporary Restraining Order (“TRO”) in the Order to Show Cause to allow the owner to effectuate repair of the “C” violations.On the second date before the Court, Respondent’s counsel contested service. The Answer contained a demand for a traverse hearing asserting that “[n]o proper attempt at personal service was ever made or effectuated. It is further requested that G.P.S. records be furnished to Respondents. Respondents demand a traverse hearing.”The First Affirmative Defense argues that the Petitioners did not serve in accordance with the requirements of the Order to Show Cause, that service was effectuated upon a nonexistent address, that the Respondents did not receive the Order to Show Cause and the Petitioner failed to serve at the address listed with the Department of Housing Preservation and Development (“DHPD”). Based on these arguments the owners claim that the Court does not have jurisdiction over the owners and/or the agent.It is not disputed that service of the Order to Show Cause was made by Federal Express overnight delivery to 10 Siege Court, Brooklyn, NY. DHPD was served in the same manner and copies of the Order to Show Cause with the TRO were served upon the non-petitioning tenants by posting a copy to the front door of the premises.1 It is further undisputed that the address used to effectuate service on the owner was taken from the deed that is registered with the City of New York and obtained through th Automated City Register Information System (“ACRIS”).The difficulty started when Petitioners checked the DHPD database to confirm an address for service on the registered managing agent for the Premises in order to commence this proceeding. The Respondent, who took title to the premises on November 9, 20172, did not register with DHPD until March 9, 20183. Consequently, at the time Petitioners checked the DHPD website the prior owner and agent were still listed on the DHPD registration.In response to Respondent’s claim of lack of personal jurisdiction and request for a traverse hearing, counsel for the Petitioner argued that the “traverse claim is meritless because Landlord did not register his address with the appropriate agencies, did not put the correct address on the deed he signed, and attempted to avoid liability.”4On May 2, 2018 this Court issued an Order which granted leave to amend the spelling of the street address and scheduled a traverse hearing. During the course of the hearing the Petitioners’ counsel stipulated on the record that she effectuated service by mailing the Petition by overnight mail to 10 Siege Court, Brooklyn, which is an address that does not exist. The Respondent’s counsel made an oral motion to dismiss the proceeding for improper service.The commencement of a 7A proceeding is goverened by RPAPL §771(5) and (6) which provides:5. Manner of service.a. Service of the notice of petition and petition shall be made by personally delivering them to the person or persons required to be served pursuant to subdivision three of this section. Service upon the city of New York shall be made by personal delivery to the commissioner of the city department charged with enforcement of the housing maintenance code of such city, or to an agent duly authorized to accept such service on his behalf. If service cannot with due diligence be made within the city upon an owner, mortgagee or lienor of record in such manner, it shall be made:(1) upon the owner last registered with the department of housing preservation and development pursuant to article forty-one of chapter twenty-six of the administrative code of the city of New York…by delivering to and leaving personally with the person designated pursuant to article forty-one of chapter twenty-six of such code as managing agent of the subject dwelling,…, a copy of the notice of petition and petition;(2) upon a mortgagee or lienor of record, by registered or certified mail, return receipt requested, at the address set forth in the recorded mortgage or lien.b. If such personal service upon the person designated pursuant to article forty-one of chapter twenty-six of the administrative code of the city of New York as managing agent of the subject dwelling cannot be made with due diligence, service upon such last registered owner shall be made by affixing a copy of the notice and petition upon a conspicuous part of the subject dwelling; and in addition. within two days after such affixing, by sending a copy thereof by registered or certified mail, return receipt requested, to the owner at the last address registered by him with the department of housing preservation and development or, in the absence of such registration, to the address set forth in the last recorded deed with respect to such premises.6. Notice to non-petitioning tenants.Notice of the proceeding shall be given to the non-petitioning tenants occupying the dwelling by affixing a copy of the notice of petition and petition upon a conspicuous part of the subject dwelling.First, the Affirmation Of Service of the Order to Show indicates that service was effectuated by Federal Express Overnight mail delivery. Overnight mail by Federal Express is not a authorized method of service according to the clear language of the statute.Apparently, there were no attempts at personal service on the Respondent at his address as listed on the deed. Had personal service been attempted Petitioners would have discovered that the address was incorrect.The statute clearly requires personal service and only after due diligence, can service be made by certified mail. Furthermore, while understandable for Respondents to forgo serving the last registered owner based upon their knowledge that the Premises had been sold, the statute carves out no such exception.Finally, the Affirmation of Service states that true copies were posted on the door of the premises for the non-petitioning tenants in compliance with RPAPL §771(6)5, however, it does not allege compliance with RPAPL §(5)(b) namely that a copy was posted for Respondents.The Court notes that the Order to Show Cause submitted for signature provided for service on the owner “by personal service or by service by express/overnight mail to the address with the deed filed…” Emphasis added. This method is in derogation of statute.“A statute should be construed so as to give effect to all of its language (Matter of Yolanda D., 88 N.Y.2d 790, 795, 651 N.Y.S.2d 1, 673 N.E.2d 1228 [1996]; McKinney’s Cons. Laws of N.Y., Book 1, Statutes §231). and all parts of a statute are to be read together to determine the legislative intent (id. §§97, 98; see Heard v. Cuomo, 80 N.Y.2d 684, 689, 594 N.Y.S.2d 675, 610 N.E.2d 348 [1993]). Ebanks v. Skyline NYC, LLC, 21 Misc. 3d 40, 43-44, 871 N.Y.S.2d 587, 589 (App. Term 2008), aff’d, 70 A.D.3d 943, 896 N.Y.S.2d 369 (2010).There has been no showing of special circumstances to obviate the statutory requirement of an attempt at personal service before resorting to service by mail delivery, or the requirement that the papers be posted at the premises for the owner as well as the non-petitioning tenants.Based upon the clear non-compliance with the statutory service requirements contained in RPAPL §771(5) and (6) the proceeding must be dismissed.Accordingly, Respondents’ motion to dismiss is granted and the proceeding is dismissed without prejudice. In light of this the Court vacates its prior orders. The Respondent is cautioned that he is still bound by statutory and code requirements in effectuating work at the premises.This constitutes the Decision and Order of this Court.Dated: Brooklyn, New YorkMay 11, 2018
