No Default Judgments Granted Where Court Papers Were Served Improperly
LVT Number: #31834
Landlord sued to eject former rent-stabilized tenant, one named apartment occupant, and other "John Does" or "Jane Does." Landlord claimed that tenant was a nonprimary resident, while occupants lived in the unit without landlord's consent. Landlord asked the court for a default judgment against tenant and the named occupant, after tenant failed to appear in court.
The court ruled against landlord. Landlord had rented the apartment to tenant in 1978, and the lease was most recently renewed for the term between April 27, 2018, through July 31, 2020. Landlord then sent tenant a nonrenewal notice in April 2020, based on its belief that tenant didn't reside in the unit as her primary residence.
The court dismissed the case. Service of landlord's court papers on tenant by "nail and mail" service at the apartment was improper since the premises was neither tenant's actual place of business, dwelling place, or usual place of abode. Although the affidavit of service stated that an additional copy of the papers was mailed both to the apartment and tenant's Brooklyn address, such service still was incomplete absent compliance with proper service. Landlord's own court papers stated that tenant hadn't been seen at the apartment or the building since at least Jan. 1, 2019. Landlord's request for a default judgment also wasn't properly brought against the named apartment occupant. Although landlord submitted a surveillance log memorializing video footage of John and Jane Does #1-9, the log itself didn't identify named respondent Hayden as any of the nine Jane Does. So Hayden wasn't a proper defendant, wasn't properly served, and landlord hadn't met its burden of proof in submitting "some proof of liability." While tenant's last lease expired on July 31, 2020, landlord's proof only documented the comings and goings of unnamed individuals at the apartment up to Feb. 23, 2020.
King Enters. Ltd. v. O'Halloran: Index No. 152173/2021, 2022 NY SLip Op 30138(U)(Sup. Ct. NY; 1/19/22; Perry, J)