In this turnover proceeding, petitioner Rosa Maria Falcon (hereinafter, “petitioner”), as administrator of the estate of Petro Pablo Falcon Bernabel, seeks exclusive possession of the apartment where decedent resided and a warrant of eviction on Angel Matto and “John Doe” and/or “Jane Doe” from the apartment. Petitioner is seeking alternate service on Angel Mattco and “John Doe and/or Jane Doe.” The petition alleges that the apartment is occupied by Angel Matteo and a co-occupant, name unknown. Petitioner’s October 31, 2023 application for alternate service lacks sufficient information to be granted. Among other things, it remains unknown as to how petitioner was able to identify Angel Matteo or anyone else as residing in the apartment. On July 16, 2024, petitioner submitted a proposed order authorizing substituted service pursuant to RPAPL 735. Counsel also submitted a one-page affidavit from a real estate broker engaged by petitioner, stating that the last time he had spoken with Angel Matteo, Angel Mattco had stated his roommate had vacated the apartment, and the broker did not know if a new roommate was currently residing in the unit. The real estate broker’s affidavit is devoid of any specifics regarding the time, date, and/or place of these alleged conversations. It is further devoid of any specifics as to what, if any, due diligence had been performed to determine who, if anyone, was residing in the apartment. Service in an eviction proceeding is governed by RPAPL 735. RPAPL 735[1] allows for alternate service, either on a person of suitable age and discretion upon reasonable application, or by conspicuous placement service. Service in a turnover proceeding is governed by SCPA 307. SCPA 307[3] allows alternate service, as the court may direct, upon a domiciliary natural person only when it is shown, with due diligence, that personal delivery could not be effected, or where good cause is shown. Here, because petitioner is petitioning for turnover of assets pursuant to SCPA 2103 and eviction of anyone residing in the apartment, both SCPA 307 and RPAPL 735 apply. However, there is no admissible evidence before this court as to whom, if anyone, resides in the apartment. Therefore, it remains unanswered as to whom, at a minimum, service under SCPA 307 and RPAPL 735 would be required. With regards to service, “the guiding principle must be one of notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections” (Raschel v. Rish, 69 NY2d 694, 696 [1986], quoting Mullane v. Central Hanover Trust Co., 339 US 306, 314 [1950]). Here, the petition and subsequent application for alternate service have a conspicuous lack of detail, thus failing to demonstrate if anyone resides in the apartment in question. Moreover, lacking from this application is evidence in the form of an affidavit from someone with personal knowledge who is aware of anyone recently coming or going from the apartment unit (see 66 Fort Wash. Assoc., LLC v. Acevedo, 69 Misc 3d 134(A) [1st Dept 2020] [finding summary judgment unwarranted in a proceeding where the agent's affidavit was not based on personal knowledge of the facts, but instead recited hearsay]; Briar Hill Apts. Co. v. Teperman, 165 AD2d 519 [1st Dept 1991] [allowing electricity bills as business records under CPLR 4518 as evidence to prove no one was living in the unit for the period in question]). Instead, the real estate broker’s one-page affidavit lacks any relevant information. Not only does it lack personal knowledge and rely upon hearsay, but it also misses dates and anything else to indicate what, if any, due diligence was performed. Accordingly, it is hereby ORDERED that petitioner’s request for alternate service is denied with leave to renew upon proper papers. The Clerk of the Court shall email a copy of this Order to counsel for petitioner at the address below. Dated: January 6th, 2025
