Landlord Proved That Tenant Was Properly Served

Landlord sued to evict tenant for nonpayment of rent. Tenant didn't appear in court and was evicted. Tenant then came forward and claimed he wasn't properly served with landlord's petition. The trial court held a hearing on service, and found that tenant wasn't properly served with landlord's petition. Tenant was restored to possession. Landlord appealed. The appeals court found that tenant was properly served. Tenant went away for three weeks the day before service was attempted. The process server testified that he'd left a copy of the petition on tenant's door by conspicuous place service. A neighbor testified that he didn't see the notice, but he only went to the apartment once---a week after tenant went away. And the postal worker's testimony that no certified mail was delivered or retrieved at the post office didn't matter. Service is complete upon mailing, not receipt, and tenant was away. But, the appeals court did find that tenant's failure to appear in court was excusable. So, the court ruled for tenant and vacated the default.

318-20 Co. v. Wasserman: NYLJ, p. 29, col. 1 (5/4/94) (App. T. 1 Dept.; Parness, JP, McCooe, Glen, JJ)