Civil Court of the City of New York, Queens County, December 12, 2019

Cooper, Paroff & Graham P.C., Jamaica, for petitioner.

This summary holdover proceeding was commenced to recover the premises located at 50-17 42nd Street, 2nd Floor, Sunnyside, New York 11104 based on a 30-day notice of termination dated August 7, 2019, alleging the termination of a month-to-month tenancy. The court held an inquest after respondent failed to appear on December 10, 2019.

The witness, Germaine Denis, trustee of the owning entity trust, credibly testified that the respondent had lived in the premises for 40 years, that the respondent was disabled, that he had been removed from the premises by Adult Protective Services (APS) in April of 2019, and that no rent had been accepted during the window period. However, based on the testimony provided by the petitioner, in conjunction with the documentary evidence admitted (the certified 2016 deed—petitioner's 1; the certified MDR registration—petitioner's 2; and the 30-day notice—petitioner's 3) as well as the court taking judicial notice of the contents of the court file, the court finds that petitioner did not prove their prima facie case.

The court must first analyze the service to determine personal jurisdiction prior to dealing with any other issues. (Elm Mgt. Corp. v Sprung, 33 AD3d 753 [2d Dept 2006].) Attempts at service which are predestined to fail are not considered reasonable attempts; "[i]n other words, the attempt at service" must not be unlikely to succeed. (91 Fifth Ave. Corp. v Brookhill Prop. Holdings LLC, 51 Misc 3d 811, 814 [Civ Ct, NY County 2016]; see RPAPL 735; 161 Williams Assoc. v Coffee, 122 Misc 2d 37 [Civ Ct, NY County 1983].) Here, petitioner's witness testified that they knew that the respondent had been removed somewhere by APS and there was no testimony about any investigation undertaken to ascertain respondent's whereabouts such that service would not be violative of due process as a "mere gesture." (Mullane v Central Hanover Bank & Trust Co., 339 US 306 [1950].) As such, pursuant to RPAPL 735, the service was inadequate.

However, the court will continue its analysis of the inquest with regard to the appropriateness of the notice. The Housing Stability and Tenant Protection Act of 2019 (L 2019, ch 36, § 1, part M, § 3) (HSTPA), in the relevant part, added Real Property Law § 226-c, which mandates that depending on the length of the tenancy of the respondent, they are entitled to a different length of time for the notice of termination. The effective{**66 Misc 3d at 435} date of this provision of the law was October 12, 2019 (120 days following the passing of the law—presumably this delay in the effective date was enacted in order to give petitioners the opportunity to serve the correct notices). Since October 12, 2019, was a Saturday and October 14 was a holiday, the first "actual" effective date was October 15, 2019.

The point where a proceeding is commenced is either upon the filing of the petition and notice of petition or the filing and service of the petition and notice of petition. (See 92 Bergenbrooklyn, LLC v Cisarano, 50 Misc 3d 21 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; ABN Assoc., LLC v Citizens Advice Bur., Inc., 27 Misc 3d 143[A], 2010 NY Slip Op 51075[U] [App Term, 1st Dept 2010]; 207-213 W. 144th St. HDFC v Jenkins, 44 Misc 3d 1224[A], 2014 NY Slip Op 51300[U] [Civ Ct, NY County 2014].) This proceeding, as such, was commenced either October 17, 2019—the date that the petition and notice of petition were filed—or October 25, 2019—the date that service was effectuated upon the respondent by personal service—or October 28, 2019—the date that petitioner filed the proof of service with the court. Because each of these dates is after the effective date of the relevant changes made by HSTPA, the court need not reach the exact date of commencement. The operation of law remains the same with regard to all three dates. Petitioner's counsel's argument that the date of commencement of the proceeding is with the service of the notice of termination is unavailing, partly, because it would undermine, or rather moot out, all case law dealing with the acceptance of rent in the "window period" of post-notice and pre-petition.

Here, petitioner commenced the proceeding after the effective date of the provisions of the HSTPA-added Real Property Law § 226-c which then apply in the case at bar. Since, by petitioner's own testimony, the respondent tenant has been living in the subject premises for more than two years, he was entitled to a 90-day notice, not a 30-day notice.

Therefore, for the reasons stated above, the petition is dismissed.