Eviction Case Dismissed Despite Tenant's Default Based on Improper Service of Hardship Declaration Form

Landlord sued to evict tenant after serving a 60-day notice. Landlord and tenant appeared on Nov. 8, 2021, the first court date and tenant was referred to legal counsel by the court. Neither tenant nor his attorneys appeared on the Dec. 7, 2021, adjournment date and the case was further adjourned to Jan. 12, 2022, for landlord to make a default judgment motion.

Tenant again failed to appear, but the court ruled against landlord after conducting an inquest. At the time landlord's court papers were served in April 2021, the COVID-19 Emergency Eviction and Foreclosure Prevention Act (CEEFPA) required service with the notice of petition and petition of a hardship declaration by personal delivery. Here, the affidavits of service for the hardship declaration and the notice of petition and petition both asserted only two attempts at service were made before resorting to nail-and-mail. No statements were made to demonstrate that due diligence was exercised before resorting to nail-and-mail service. Due diligence requires "genuine inquiries" about the whereabouts of the party to be served. So the court was required to dismiss the case without prejudice. 

Suero v. Rivera: Index No. L&T301181/21, 2022 NY Slip Op 22031 (Civ. Ct. Queens; 2/8/22; Guthrie, J)