Recitation, as required by CPLR §2219(a), of the papers considered in the review of petitioner’s motion to restore, for a default judgment, and for related relief: Papers Numbered Notice of Motion & Affirmation/Affidavit/Exhibits Annexed 1 (NYSCEF No.4) Non-Military Affidavit 2 (NYSCEF #5) Hearing Exhibits (1-6) 3-9 Upon the foregoing cited papers, the decision and order on petitioner’s motion and the hearing taken via Microsoft Teams on September 28, 2021 is as follows. PROCEDURAL HISTORY This nonpayment proceeding was commenced in December 2019. After an initial warrant request was rejected by the court (Scott-McLaughlin, J.), all eviction proceedings were suspended as a result of the COVID-19 public health emergency. See Administrative Order (AO) 68/20. Thereafter, in March 2021, petitioner made the instant motion to restore and for a default judgment. The motion appeared in the HMP Part on June 21, 2021 and July 27, 2021. After respondents failed to appear on both dates, the motion was adjourned to August 23, 2021 in Part E. On August 23, 2021, respondents again failed to appear. At the time, Part A of the COVID-19 Emergency Eviction and Foreclosure Prevention Act (“EEFPA”) [L 2020, ch 381], which had required a hearing upon motion before the entry of default judgments in eviction proceedings (Section 5), had been enjoined by the US Supreme Court. See Chrysafis v. Marks, 594 US __, 2021 WL 3560766 [2021]. Since petitioner had not submitted non-military affidavits, however, the proceeding was adjourned to September 13, 2021 for submission. On September 13, 2021, respondents failed to appear. Prior to the September 13th court date, Governor Kathy Hochul signed L 2021, ch 417, which reinstated the motion and hearing requirements before default judgments could be issued in eviction proceedings (Part C, Subpart A, Sec. 5). Upon respondents’ failure to appear on September 13, 2021, the court granted petitioner’s motion to restore and for a default judgment (which had not been withdrawn) to the extent of setting it down for a hearing as required by L 2021, ch 417. The hearing was scheduled for September 28, 2021. On September 28, 2021, respondents failed to appear and the court conducted a hearing via Microsoft Teams with petitioner’s attorney and witness. Upon the conclusion of the hearing, the court reserved decision on the ultimate relief requested in petitioner’s motion. HEARING Petitioner’s attorney first offered exhibits that the court admitted without testimony: Exhibit 1, a deed for the subject building, which the court admitted after comparing its contents with the same document found on the ACRIS (Automated City Register Information System) website; Exhibit 2, the HPD multiple dwelling registration (MDR) receipt, which the court took judicial notice of pursuant to Multiple Dwelling Law (MDL) §328(3) after comparing it with the information on Department of Housing Preservation and Development (HPD) website; and Exhibit 3, a certified registration for the subject premises from the Division of Housing and Community Renewal (DHCR). Petitioner’s attorney then called its witness, Daniel De Castro. Mr. De Castro testified that he is the manager for petitioner and that his job duties include reviewing leases, pleadings, notices, and handling the affairs of the company. He also testified that he is familiar with the subject premises. Mr. De Castro then testified about the current lease in effect, running from May 1, 2021 through April 30, 2023. The exhibit, which was offered as petitioner’s Exhibit 4, was admitted upon Mr. De Castro authenticating the signatures on the lease. Mr. De Castro also testified that a rent demand notice was served prior to the commencement of the proceeding. Petitioner’s attorney submitted a copy of the demand notice (dated November 12, 2019) and certified mail receipt, which were admitted as petitioner’s Exhibit 6. The court also took judicial notice of the pleadings, rent demand, and affidavits of service. Mr. De Castro testified about the rents due, which he said totaled $40,774.00 as of September 2021. Petitioner’s attorney then asked Mr. De Castro about the prior lease, which was in effect when this proceeding was commenced. He testified that the term ran from May 1, 2019 through April 30, 2021, as well as his identification of the signatures. The lease was offered as Petitioner’s Exhibit 5 and was admitted. Upon the court’s questioning, Mr. De Castro testified that he had not received a COVID19 hardship declaration from any respondent and had not received any information about an ERAP (Emergency Rental Assistance Program) application by any respondent. He also stated that the building’s superintendent had encouraged Mr. Douglas to speak to the landlord when the non-military investigation was undertaken on August 30, 2021. Finally, Mr. De Castro testified that no one in the subject premises was elderly, disabled, or infirm, to his knowledge. Petitioner’s attorney then requested the ultimate relief in the motion and rested. DISCUSSION & CONCLUSION Petitioner’s motion and the hearing testimony and evidence established that petitioner is entitled to a judgment of possession on default against Marlon M Douglas, Tracey Reid, John Doe, and Jane Doe. Petitioner’s evidence established that a lease was in effect when the proceeding was commenced (265 Realty, LLC v. Trec, 39 Misc 3d 150[A], 2013 NY Slip Op 50974[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]) and that rents were due when it was commenced and at the time of the hearing. However, petitioner is not entitled to a monetary judgment. No respondent has appeared or answered, and petitioner has not established that its service complied with the CPLR §308(4) “due diligence” standard. See Avgush v. Berrahu, 17 Misc 3d 85, 90 [App Term, 2d Dept, 9th & 10th Jud Dists 2007]. Generally, conspicuous place service under RPAPL §735 does not suffice as “due diligence” service. See Merrbill Holdings, LLC v. Toscano, 59 Misc 3d 129[A], 2018 NY Slip Op 50410[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]. Although petitioner’s affidavit of service annexed to the notice of petition here alleges three (3) attempts at service, there is no allegation that any inquiries were made by the process server to learn of respondents’ whereabouts. See Merrbill Holdings, LLC, 2018 NY Slip Op 50410[U], *2; see also Estate of Waterman v. Jones, 46 AD3d 63, 66 [2d Dept 2007] [Due diligence requires "genuine inquiries" about the whereabouts of the party to be served]. Petitioner is entitled to pursue its monetary claims in a plenary action. The court deems the hearing on September 28, 2021 to suffice as a conference for the purposes of AO 245/21. Issuance of a warrant of eviction shall be stayed through October 8, 2021. The warrant must comply with L 2021, ch 417, Part C, Subpart A, Section 6(b). Nothing herein shall deprive petitioner from seeking relief with regard to the warrant, if appropriate. The non-military affidavit submitted by petitioner suffices to grant the default judgment and warrant. Upon issuance of the warrant, petitioner shall be entitled to execute after service of a notice of eviction pursuant to RPAPL §749(2). Execution remains subject to all laws and orders affecting evictions in Queens County, New York. The tender or deposit with the court of the full rent due prior to execution by any respondent prior to execution shall result in the vacatur of the warrant, unless petitioner establishes that the rents were withheld in bad faith. See RPAPL 749(3). In the event that petitioner becomes aware that any respondent requires an Adult Protective Services (APS) referral or is sick with COVID-19 prior to execution, its attorney shall promptly notify the court. In addition, if any respondent submits a COVID-19 hardship declaration to petitioner or files an ERAP application on or before January 15, 2022, petitioner’s attorney shall promptly notify the court and the marshal, if any. This Decision/Order is being filed to NYSCEF. Petitioner’s attorney shall serve a copy of this Decision/Order upon each respondent by first class mail no later than October 5, 2021. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Dated: September 30, 2021
