Recitation, as required by C.P.L.R. §2219(a), of the papers considered in the review of Respondent’s Motion to Dismiss (Motion #1 on N.Y.S.C.E.F.): Papers Numbered Notice of Motion (Motion # 1 on N.Y.SC.E.F.) 1 Opposition Papers (Entry 19 on N.Y.S.C.E.F.) 2 Reply Papers (Entry 20 on N.Y.S.C.E.F.) 3 DECISION/ORDER Petitioner commenced this post-foreclosure holdover proceeding seeking possession of 421 East 135th Street, 1st Floor and 2nd Floor Apartment above Ground Level, Bronx, N.Y. 10466 (the “subject premises”) from Respondents. The Notice of Petition and Petition (the “papers”) were filed on N.Y.S.C.E.F. on October 19, 2021. Respondents obtained counsel and filed the instant motion (Motion #1) on N.Y.S.C.E.F. on February 28, 2022. On the March 21, 2022 appearance, the fully-briefed motion was marked submitted for decision. The motion seeks the following reliefs: 1) deeming Respondents’ answer annexed to the motion to be served and filed; 2) dismissal of the proceeding pursuant to C.P.L.R. §§308(4) and 3211(a)(8) and the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (“C.E.E.F.P.A.”) due to lack of personal jurisdiction based upon Petitioner’s failure to effectuate “due diligence” service of the papers upon Respondents; and, 3) dismissal of the proceeding pursuant to R.P.A.P.L. §713(5) and C.P.L.R. §3211(a)(7) for failure to state a cause of action based upon Petitioner’s failure to exhibit a properly certified deed prior to commencing this action. Petitioner only opposes the second and third prongs of the motion. The branch of Respondents’ motion which seeks to have the answer deemed as served and filed is granted without opposition. The verified answer, annexed as “Exhibit H” to the motion, is hereby deemed as served and filed. The court now addresses Respondents’ argument that the proceeding should be dismissed pursuant to C.P.L.R. §§308(4) and 3211(a)(8) for lack of personal jurisdiction due to Petitioner’s failure to exercise due diligence service of the papers prior to resorting to R.P.A.P.L. §735 conspicuous service, as required by C.E.E.F.P.A. Although Respondents move to dismiss the proceeding due to Petitioner’s failure to comply with the service requirement of Part A, §5(2) of C.E.E.F.P.A., the court will make its analysis pursuant to Part C, Subpart A, §3(2) of Chapter 417 of the Laws of 2021 (the “Act”) because the affidavit of service in contention is dated November 4, 2021 when the latter act was in effect. The Act replaced Part A of C.E.E.F.P.A. due to the U.S. Supreme Court’s ruling in Chrysafis v. Marks, 141 S. Ct. 2482 (2021). The service requirements of C.E.E.F.P.A. and the Act are virtually identical. Part C, Subpart A, §3(2) of the Act provides in pertinent part: “Service of the notice of petition with the attached copies of the hardship declaration and affidavits shall be made by personal delivery to the respondent, unless such service cannot be made with due diligence, in which case service may be made under section 735 of the real property actions and proceedings law.”1 L. 2021, Ch. 417, Part C, Subpart A, §3(2). The affidavit of service (Entry 8 on N.Y.S.C.E.F.) for the papers herein states that the process server resorted to affixing and mailing the papers on November 4, 2021 after being unable to effectuate personal delivery upon Respondents on Wednesday, November 3, 2021 at 6:07 P.M. and Thursday, November 4, 2021 at 9:07 A.M. Respondents argue that the two weekday attempts at personal service do not collectively comply with the due diligence requirement of the Act. Respondents maintain that the affidavit of service is defective on its face and is devoid of facts pertaining to the attempts made by the process server to further inquire about Respondents’ whereabouts. Based upon Petitioner’s failure to effectuate personal delivery by due diligence before resorting to R.P.A.P.L. §735, Respondents argue that the court does not have personal jurisdiction over them and the matter should be dismissed on that basis. Petitioner opposes this branch of Respondents’ motion. Petitioner argues that due diligence pursuant to C.P.L.R. §308(4) is inapplicable to this proceeding. Petitioner states that if the Legislature intended for C.P.L.R. §308(4) to apply it would have explicitly referred to it just as it did to R.P.A.P.L. §735 in the same sentence. Because it did not, the Legislature could not have meant personal service to be effectuated pursuant to the due diligence requirement of C.P.L.R. §308(4). Instead, Petitioner asks the court to interpret “due diligence” in the Act to carry its everyday meaning — i.e., a good faith attempt at personal delivery prior to resorting to R.P.A.P.L. §735. To determine otherwise would render service pursuant to R.P.A.P.L. §735 meaningless. Petitioner posits that if the court disagrees then the appropriate relief would be to set the matter down for a traverse hearing, not dismissing it. Lastly, Petitioner argues that dismissal pursuant to C.P.L.R. §3211(a)(8) is inappropriate here because the affidavit in support of the motion is by a Respondent who does not have the personal knowledge to refute the allegations in the affidavit of service. The court disagrees with Petitioner that “due diligence” of the Act should carry its everyday meaning and not the legal term of art that is associated with service. Due to the continuing public health crisis caused by the COVID-19 pandemic, the Legislature was concerned with “the damage significant numbers of evictions would cause to the state’s economic recovery, and the deleterious social and public health effects of homelessness and housing instability.” L. 2021, Ch. 417, §2 (“Legislative intent”). The Act was promulgated as part of a series of statutes that were passed by the Legislature and signed by the Governor during the pandemic “to protect the public health, safety, and general welfare of the people of New York.” Id. To interpret the “due diligence” requirement in service to mean “good faith” attempt rather than the stricter standard derived from C.P.L.R. §308(4) would be incompatible with the legislative intent, especially with the enacting body’s stated objective to prevent as many evictions as possible during the pandemic. By exercising due diligence in personal service, the Legislature intended that the process servers first comply with the higher standard, as opposed to the “reasonable application” of R.P.A.P.L. §735, so that respondents would be able to personally receive notices of petition, petitions and the hardship declarations in the event respondents were experiencing financial or health issues due to COVID-19. There would be a stronger likelihood for respondents to obtain these documents through the due diligence standard of personal service rather than the relatively relaxed standard of R.P.A.P.L. §735. The fact that the Legislature does not explicitly refer to C.P.L.R. §308(4) does not mean that the Legislature did not intend for the standard derived from that provision of the law to attach. Requiring a process server to exercise due diligence as derived from C.P.L.R. §308(4) would be more harmonious to the legislative intent as opposed to the interpretation proposed by Petitioner. “In the construction of statutory provisions, the legislative intent is the great and controlling principle.” Matter of Albano v. Kirby, 36 N.Y.2d 526, 529-30 (1975). One must be mindful of the spirit and purpose of the statute along with the objectives of the enactors when interpreting a statute. See id. at 530-31. [T]he enacting body will be presumed to have inserted every provision for some useful purpose.” Id. at 530. See also McGowan v. Mayor of City of N.Y., 53 N.Y.2d 86 (1981). To interpret that the Legislature meant “due diligence” to be a term other than the legal term of art commonly associated with personal service, along with the accompanying standard, when the Legislature is, in fact, addressing personal service would be nonsensible. If the Legislature intended only service by R.P.A.P.L. §735, then it would surely have not used the term “due diligence.” Hence, the court reads the “due diligence” requirement in the Act as having the same meaning as the “due diligence” standard mentioned in C.P.L.R. §308(4). See, e.g., Seward Park Housing Corp. v. Cohen, 287 A.D.2d 157 (1st Dep’t 2001) [determining "open and notorious" of an adverse possession claim to have the same meaning as "openly and notoriously" harboring a pet under Administrative Code §27-2009.1(b) (the Pet Law)]. The court also disagrees with Petitioner that service pursuant to R.P.A.P.L. §735 would be rendered meaningless if the court were to read “due diligence” to mean the standard as derived from C.P.L.R. §308(4). Respondents are correct in arguing that the statute only temporarily heightens the standard of service due to the pandemic and the law allows for conspicuous service under R.P.A.P.L. §735 when due diligence cannot be met. The due diligence standard does not extinguish R.P.A.P.L. §735 but only makes it available once the due diligence requirement is exhausted and personal service pursuant to that standard cannot be accomplished. The question faced by the court is whether the facts as alleged in the affidavit of service comply with the due diligence requirement. The court answers that question in the negative. The due diligence requirement is based upon the quality of attempts made to effectuate personal delivery and should be strictly observed. See Smith v. Wilson, 130 A.D.2d 821 (3d Dep’t 1987). The affidavit of service here only lists two weekday attempts at personal delivery before the process server resorts to “affix and mail” pursuant to R.P.A.P.L. §735. The affidavit of service establishes that the process server did not make attempts to personally serve Respondents during the weekend and is devoid of any inquiries made as to ascertain Respondents’ whereabouts before resorting to service pursuant to R.P.A.P.L. §735. See Spath v. Zack, 36 A.D.3d 410 (1st Dep’t 2007) (holding that three weekday attempts at personal delivery did not constitute due diligence without an attempt during the weekend and without inquiring about defendant’s whereabouts). See also Bel Air Leasing L.P. v. Johnston, 73 Misc. 3d 809 (Civ. Ct., Kings Co. 2021) (holding that the due diligence requirement of C.E.E.F.P.A. was not met where the affidavit of service did not contain any allegation that the process server made inquiries into respondent’s whereabout before resorting to “affix and mail” service); Suero v. Rivera, 74 Misc. 3d 723 (Civ. Ct., Queens Co. 2022) (holding that the two attempts at personal service did not satisfy the due diligence requirement of C.E.E.F.P.A. where the affidavit of service was devoid of any statements attesting to due diligence attempts at personal service). Because the affidavit of service is devoid of any allegations of attempting to effectuate personal delivery by exercising due diligence or inquiring into Respondents’ whereabouts, the affidavit of service is facially defective. Petitioner’s argument that the court should schedule a traverse hearing rather than dismiss the proceeding is unavailing. Respondents do not dispute the specific facts as alleged by the process server in the affidavit of service. The dispute is over whether the two weekday attempts in the affidavit of service are legally sufficient and comply with the due diligence requirement of the Act. As recited above, these attempts do not comply with that standard as imposed by the statute. Hence, the court does not have personal jurisdiction over Respondents and a dismissal of this proceeding is warranted on that ground. The court need not address Respondents’ remaining argument for dismissal by virtue of the above. Based upon the foregoing, Respondents’ motion is granted as follows. The answer annexed as “Exhibit H” is hereby deemed served and filed. The proceeding is hereby dismissed without prejudice due to Petitioner’s failure to attempt personal delivery upon Respondents by due diligence, as required by the Act, before resorting to conspicuous service under R.P.A.P.L. §735. The foregoing constitutes the decision and order of the court. Dated: April 18, 2022
