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Re: URGENT! Improper service: take immediate action

Posted by Anna on February 24, 1999 at 09:11:58:

In Reply to: Re: URGENT! Improper service of Non-payment petition? posted by Mark Smith on February 24, 1999 at 01:46:47:

: You are overreacting. You have five days from the date of service to answer. Conspicuous placement service is complete on the date of mailing of the papers by regular mail and certified or registered mail. The papers should have been affixed to the door or slipped under the door, after the process server made reasonable efforts to effect personal service.

: : I have just recieved a notice of petition/Non-payment from my Landlord's attorney dated February 19, 1999. Today is the 24th. It was stuffed into my mailbox, without an envelope, and I have recieved no certified copy or any official mail delivery.Not even taped to my door. What should I do? Is this notice properly served?
: : It says the LL swore the petition on Feb. 15, and (as I said)it is dated the 19th, but it says I have to respond within Five days and today is the 24th!! Are my five days past? He didn't even mail it to me and he waited until the five days were past. He did this on purpose! Can he get away with this or am I overreacting? Please respond.

Yes: it IS improper service but NO you are not overreacting: You are in grave danger of being DEFAULTED by not taking action NOW; vacating a default is more difficult and riskier than Answering. For what is proper service, see RPAPL 735, here on

Please, please goto Housing Court here on and/or and click on Civil Court Directory: read about Non-Payment Dispossess. Call your county HC clerk: talk to a real person or wade thru the info on the main tel#.

Short version:
1. LL serves (or claims to serve) a Rent Demand.
2. LL files Affidavit of Service w/ HC clerk, gets an Index Number.
3. LL serves, or claims to serve, the Petition.
4. LL files Affidavit of Service of Petition w/ HC clerk.
5. You now have an official lawsuit against you. Your 5-days-to-answer or get defaulted start: 1. 5 days from when LL claims you were PERSONALLY served or five days after Step 4 for Nail&Mail (conspicuous place service: tape on or putunder your apt door)

At step 4, HC clerk will mail you a postcard: don't wait for it: if they claim Personal Service, your five days are already up!

Go to Housing Court in your borough ASAP: first stop: the CityWide info tables, tell them the story, get their current Info sheet. Then goto HC clerks office, bring the Petition, your lease, and/or ConEd or Tel Bill: if there is no Index Number on your Petition, look it up in their computer, write down all dates etc. Ask Info Clerk for the file: they should let you photocopy it (might ask for a 'trade': your papers for the file). Copy ALL papers, twice: once to keep clean for court, once to write on... Get a copy of the HC cheat-sheet for Answer in Person & the HC Manual released last month.

If LL did #4, you will now know when the five days are or were up. You will need to decide whether to file an Oral Answer which sends your case to Resolution Part, or a written Pre-Answer Motion to Dismiss for lack of or improper service (you will need a lawyer or help from the Pro Se atty to do this: HC clerks do not have pre-stamped forms for this). Whatever you do, always include General Denial, & make sure everything that you know or suspect is wrong on the Rent Demand and the Petition and with your lease and/or apt or bldg is written down on your answer.
If LL did not do #4 yet... ask HC clerk, CityWide, & Pro Se atty what to do. My advice: check the HC computer every day.... esp if LL claims personal service on the rent demand.

PS: when you have time: use the search features on this message board & in the Housing Court Decisions section for info.

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