Brooklyn Heights Realty Co. v. Gliwa , 92 A.D.2d 602 ( 1983 )

— In a proceeding to recover possession of an apartment occupied by respondent Marcia Rogal, the petitioner landlord appeals (by permission) from an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated February 23, 1982, which reversed a judgment of the Civil Court of the City of New York, Kings County (Pellegrino, J.), dated November 26, 1980, and dismissed the petition. Order affirmed, with costs. In 1974, respondent William Gliwa entered into a lease with petitioner’s predecessor in title, Patio Realty Co., covering an apartment at 65 Montague Street, Brooklyn, for a period of two years. A provision which was typed into the form lease noted that the apartment was for the use and occupancy of Gliwa’s immediate family, consisting of “husband and wife”. At the time, Gliwa was engaged to respondent Marcia Rogal and, although the couple were never legally married, they lived in the apartment as husband and wife. Testimony indicates that the superintendent knew of Rogal’s presence in the apartment and regarded her as “Mrs. Gliwa”. At the end of 1977 or the beginning of 1978, Gliwa moved out of the subject premises, having first signed a three-year renewal of the original lease. The petitioner, Brooklyn Heights Realty Co., bought the apartment building in 1978. Rogal continued to live in the apartment after Gliwa’s departure, paying rent by bank check after withdrawal of funds from her savings account. In October, 1979, Rogal began to tender rent checks drawn on her personal account and bearing the name “Marcia A. Rogal”. Testimony indicates that petitioner then sought assurances from her that she was married to Gliwa. At first, Rogal claimed to be legally married, but thereafter admitted she was not. Petitioner brought a holdover proceeding seeking possession of the apartment on the ground that Rogal had no rights under the lease and was remaining in the apartment unlawfully after Gliwa left. The Civil Court granted the petition and ordered respondent Rogal to vacate the apartment. The Appellate Term reversed and dismissed the petition, stating that the evidence established that Rogal had been a legal tenant since the beginning of the tenancy (i.e., 1974) and was thus entitled to remain in possession. We affirm upon the ground that proper service of the notice of petition and petition was never effectuated and therefore the defense of lack of personal jurisdiction asserted in Rogal’s answer should have been sustained. Service was made by affixing the notice of petition and petition to the door of the apartment and by thereafter mailing the same pursuant to RPAPL 735. Before taping the notice to the apartment door, the process server rang the doorbell, but no one answered. This attempt at service took place on Monday, August 28, 1980, at 3:40 p.m. Under RPAPL 735 (subd 1), a “reasonable application” must be made to effect personal or substituted service before resort is taken to conspicuous service. While the effort the process server must make is less than that required under CPLR 308 (subd 4) (“due diligence”), the effort must have some expectation of success CPalumbo v Estate of Clark, 94 Mise 2d 1). The attempt must be made at a time when the process server could reasonably expect someone to be home (Parkchester Apts. Co. v Hawkins, 111 Mise 2d 896). Here, personal service was attempted at a time when most people are at work. Moreover, the process server had previously attempted to serve process during normal working hours but had similarly found no one at home. Hence, on this occasion, the process server could not have reasonably expected that he would succeed in effectuating personal service. Accordingly, we need not reach the substantive issue raised on this appeal. Brown, Niehoff and Rubin, JJ., concur.