Recitation, as required by CPLR 2219(a), of the papers considered in the review of the instant moving papers. Papers Numbered Notice of motion, Affidavits and exhibits (NYSCEF #4-7) 1 Affidavit or Affirmation in Opposition (NYSCEF #8) 2 Reply (NYSCEF #10) 3 DECISION/ORDER Upon the foregoing cited papers, the Decision/Order on this Motion is as follows: Petitioner commenced this holdover proceeding in April, 2022, after having served a ninety (90) day notice of termination on December 27, 2021. Petitioner and Respondent initially appeared pro-se, but both ultimately retained counsel. Respondent filed the instant motion seeking to dismiss the proceeding pursuant to CPLR 3211(a)(7) based on Petitioner’s failure to properly serve the Notice of Termination in accordance with RPAPL §232-a. RPAPL §232-a provides that a notice of termination must be served “in the same manner in which a notice of petition in summary proceedings is now allowed to be served by law.” Ordinarily, service of a notice of petition is governed by RPAPL §735 which provides that petitioner may use conspicuous place service if, after reasonable application, petitioner cannot effectuate personal or substitute service. However, the Covid-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (“CEEFPA”) provided that “[s]ervice of the notice of petition…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.” L.2020, ch. 381, Part A, §5 [2]. The parties agree that CEEFPA was in effect at the time that the notice of termination was served on respondent.1 The parties also agree that the due diligence standard provided for in CEEFPA imports the due diligence standard of CPLR 308. However, Petitioner argues that the heightened due diligence standard required by CEEFPA and defined by CPLR 308 does not apply to the service of a notice of termination because the plain language of CEEFPA only states that it is increasing the standard for service of the notice of petition. Respondent argues that the plain language of RPAPL §232-a requires that the standard for service of the notice of termination be the same as for the notice of petition. Respondent cites to A&J Estates Inc. v. Grindely where Judge Kuzniewski applied CEEFPA’s due diligence standard to service of both the notice of petition and the notice of termination. L&T 308649-21/QU (N.Y. Civ. Ct, Queens Cty. 2022). Petitioner is correct that “statutory interpretation begins with the plain language of the statute; the clearest indicator of legislative intent is the statutory text.” Balsam v. Fioriglio, 123 A.D.3d 750 (App Div., 2nd Dept. 2014). However, we cannot look at the plain language of CEEFPA in a vacuum. The plain language of RPAPL §232-a provides that the standard for service of a notice of termination will be whatever the law requires for service of a notice of petition at the relevant time. When the legislature passed CEEFPA, they didn’t need to indicate that the change applied to both notices of petition and notices of termination because the plain language of RPAPL §232-a already provided that the standard of service for notices of termination would always minor that of notices of petition. The court notes that RPAPL §711(2) provides that service of a rent demand in a nonpayment proceeding is to be made as prescribed in RPAPL §735. If the legislature wanted the service of notices of termination to always have the same standard as notices of petition, then it could have used the language provided in RPAPL §711(2). Instead, the legislature used the language in RPAPL 232-a requiring that service of a notice of termination follow whatever is required by law at the time for service of the Notice of Petition and Petition and not as in a rent demand specifically tailored to RPAPL 9735 requirements. As previously noted, the parties agree that CEEFPA imports the due diligence standard from CPLR §308. See Bel Air Leasing v. Johnston, T3 Misc.3d 809 (N.Y. Civ. Ct., Kings Cty. 2021). Whether due diligence has been satisfied must be “determined on a case-by-case basis, focusing not on the quality of the attempts at personal delivery, but on their quality.” McSorley v. Spear, 50 A.D.3d 652 (App. Div, 2nd Dept. 200S). A due diligence standard requires that the process server make “genuine inquiries about the defendant’s whereabouts and place of employment.” Faruk v. Dawn, 162 A.D.3d 744, 745-746 (App. Div., 2nd Dept. 2018). Courts have also generally held that a due diligence standard also requires at least three attempts at personal service before resorting to “nail and mail” service. See County of Nassau v. Yohannan, 34 AD.3d 620 (App, Div., 2nd Dept. 2006). Even three attempts at personal service is not enough absent proof that the process server made any attempts to ascertain the defendant’s place of business. Spath v. Zock, 36 A.D.3d 410 (App. Div, 1st Dept. 2007). The affidavit of service for the notice of termination in the instant proceeding only alleges two attempts at service on December 23, 2021 at 7:26pm and December 27, 2021 at 10:18am before resorting to “nail and mail” service. The affidavit does not provide any evidence of an effort by the process server to investigate respondent’s whereabouts or place of employment. Petitioner seeks to cure this deficiency through affidavits of Petitioner and Petitioner’s counsel. However, those affidavits do not provide any indication that the process server made more than the two attempts at service stated in the affidavit nor do they indicate that the process server made any attempt to inquire as to respondent’s place of employment. Based on the foregoing, Respondent’s motion to dismiss this proceeding pursuant to CPLR 3211(a)(7) is granted based upon Petitioner’s failure to properly serve the prerequisite ninety (90) day notice of termination. The proceeding is dismissed without prejudice. This constitutes the Decision and Order of the Court. Dated: February 1, 2023
