Posted by Anna on March 18, 2001 at 01:05:15:
In Reply to: landlord sued while I was in Korea for military posted by Susan on March 14, 2001 at 20:16:45:
A recent decision printed in the NY Law Journal reminded us that only Personal Service is good enough to get a money judgement in Housing Court. If the papers were not handed to you in person, the judge must vacate the order. Here's a summary and link (you'll need to register (free)). Suggest you print out this decision, find summaries of others on Tenant.Net in the HOusing Court Decisions (search for [money judgment]. Bring them to the Pro Se or to a tenant-clinic with a complete copy of the case file and get help to file an Order to Show Cause to vacate this judgement. Good Luck.
cut from NYLJ:
Substituted Service Is Not Sufficient to Obtain Money Judgment Against Respondent
THE INSTANT matter was initiated as a
landlord/tenant summary proceeding for
nonpayment of rent. One respondent filed an
answer, while the other one defaulted. The housing
court held that petitioner landlord was entitled to a
judgment of possession and a money judgment, in
the sum of $3,068, against respondent tenants. The
defaulting respondent moved to vacate the
judgment as to her. The affidavit of service of the
petition and notice of petition stated that
respondents were served by substituted service.
The court stated that while this service may be
sufficient to obtain a judgment of possession, it was
not sufficient to obtain a money judgment against
the defaulting respondent. Thus, the instant court
held that the housing court did not have proper
jurisdiction over the defaulting respondent and
vacated the money judgment as to her.
Eugenis v. Felipe, Kings, Civil Court, Part PA-1,
Judge Silber
Click on Eugenis v. Felipe on doi031401.html to get the whole decision.
The decision is somewhat confusing, and may be for your attorney too. Here is the most relevant part:
The conclusion that has been
reached by the courts, apparently without exception,
is that this can only be interpreted to mean that
service on a person of suitable age and discretion
coupled with the appropriate mailings thereafter
does not entitle the landlord to a money judgment,
as without a reasonable time to answer the petition
as provided for in the CPLR for a civil action, the
defaulting tenant cannot be liable for a money
judgment. This Court declines to chart a new path,
and elects to follow the present interpretation of the
law.
This analysis and conclusion was reached by the
Appellate Division, 4th Department, in 1929, in In re
McDonald, 225 A.D. 403, and there seems to be no
case that holds to the contrary to this date. See
Callen v. De Koninck, 23 AD2d 757 (2nd Dept.
1965); Oppenheim v. Spike, 107 Misc. 2d 55 (AT 1st
1980); Wayside Homes, Inc. v. Robert F. Upton, Jr.,
40 Misc. 2d 1087 (Dist. Ct. Nassau Co. 1963);
Leven v. Browne's Business School, 71 Misc. 2d
842 (District Ct. Nassau Co. 1972). The case law is
clear - only if a court order is obtained to serve a
respondent tenant with a petition and notice of
petition in a different manner other than personal
delivery can a money judgment be issued without
personal delivery. Callen v. DeKoninck, supra;
Fleming v. Flanagan, 178 Misc. 2d 723 (Town of
Ramapo Justice Ct. 1998).
ps: if, after consulting with the Pro Se and/or a lawyer or counselor at a tenant-clinic, you prefer to hire an attorney, call one of those who advertise here.
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