But McDonald never applied to noncommercial cases involving residents-like the two at bar and thousands like them. 368.) Since then, all the courts denying money judgments after substituted or duly diligent conspicuous service rely on McDonald. 368.) In so finding, the McDonald court acknowledged rejecting the plain language of a clearly written statute in favor of ascertaining for itself what the Legislature must have meant. The McDonald court, worried about nonresident commercial tenants, found that personal jurisdiction is only gained over a tenant served personally in hand or who has appeared in the proceedings. This peculiar result-which helps neither honest tenants or landlords nor a unified state court system-has its roots in a 1929 Fourth Department commercial nonpayment case, Matter of McDonald, 225 A.D. The possessory judgment granted in a summary eviction proceeding authorizes forcible eviction of the respondent from her/his home, a matter of far greater importance, in most instances, than the interest in avoiding a money judgment.” (Fern Fisher, View from the Bench, in Andrew Scherer, Residential Landlord-Tenant Law in New York § 15:12, at 15-7. There is a disconnect, moreover, in which defaulting tenants are evicted for not paying the same rent that the courts refuse to award: “It is somewhat ironic that the standard for service of process for a possessory judgment is less stringent than that for a money judgment. That will reduce the possibility that a process server will effect sewer service, lessen the chance that tenants will not answer or appear, and decrease the uncertainty that a judge who signs a default warrant will cause a tenant to be evicted without notice. Better service will result in personal or substituted service more often than now. To get money judgments, landlords will encourage process servers to effectuate better service than mere reasonable-application service. Granting money judgments after substituted or duly diligent conspicuous service improves service. That discourages tenants from appearing and renders the court impotent to do justice. The unhappy event of eviction is then tempered by the reality that money owed might never be sought. Tenants who find themselves in serious arrears can avoid in-hand personal delivery and decline to appear in court. And this assumes, following the tenants' relocation, that the tenants can be found and served in a plenary action.ĭenying money judgments after good service helps only tenants who intentionally default. Or they must begin plenary actions whose service requirements are less protective for tenants than they are in summary proceedings. These landlords must forgo rent justly owed. Every year across the state, landlords in countless summary proceedings are denied money judgments that should be granted. The issue in these two cases affects more than two cases and more than two counties. Both cases raise a common issue: Whether a court must award a money judgment against a tenant who defaults after receiving a petition and notice of petition by substituted or duly diligent conspicuous-place service. The court, which rides circuit between Richmond and Kings Counties, consolidates for explanation a Richmond County nonpayment proceeding and a Kings County holdover proceeding. This 2003 opinion is written to enforce the Legislature's 1924 decision to streamline expensive, duplicative litigation by joining in one lawsuit and before one court summary proceedings for possession and rent. Miller, New York City, for Daniella Maxean, petitioner.

Piazza of counsel), for John Dolan, petitioner. Jacobi, Sieghardt, Bousanti & Piazza P.C., New York City (Mark S. Shaunte LINNEN, Respondent.ĭaniella Maxean, Petitioner, v.

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