Civil Court of the City of New York, Queens County, February 8, 2022

Augustin D. Tella, Jamaica, for petitioner.

The decision and order on petitioner's motion for an inquest, for a warrant of eviction, and for related relief is as follows.

Procedural History

This holdover proceeding based upon a 60-day notice was commenced in April 2021. The proceeding appeared in Part Z2 on November 8, 2021. Respondent Jonathan Rivera was referred to New York Legal Assistance Group (NYLAG) for potential representation on that date and the proceeding was adjourned to Part E on December 7, 2021. NYLAG did not appear on that date (Dec. 7, 2021) and respondent could not be reached by telephone. The proceeding was adjourned to January 12, 2022, for petitioner to make a motion for default judgment. Petitioner subsequently made, through counsel, the instant motion for an inquest, for a warrant of eviction, and for related relief. Proof of service of the motion upon respondents was filed to the New York State Courts Electronic Filing System (NYSCEF). The motion was returnable for January 12, 2022. When respondents failed to appear on January 12, 2022, the court granted the motion to the extent of setting it down for an [*2]immediate hearing on the ultimate relief. The court conducted the hearing (via Teams, with petitioner's attorney and witnesses) and reserved decision on the ultimate relief requested upon the conclusion of the hearing.

Hearing

Petitioner's attorney first called Xiomara Suero as a witness. Ms. Suero testified that she is petitioner Jose Suero's sister. She described the subject premises as a single-family home with a rented basement. Petitioner's attorney then introduced petitioner's exhibit 1 (NYSCEF Doc No. 11). Ms. Suero testified that exhibit 1 was a lease between the owner of the subject premises and Mr. Suero as tenant. She further testified that this initial lease was renewed in 2021.

Next, Ms. Suero testified that Mr. Suero rented the basement to respondent Rivera but that there was no lease. She also testified that Mr. Rivera was still living in the basement and that he had not returned a COVID-19 hardship declaration. She then testified to the preparation of the notice of termination, and the court took judicial notice of the same. When questioned about how she was connected to the subject building, Ms. Suero testified that she came to live there in February{**74 Misc 3d at 725} 2020 but was not added to the lease. She also claimed to have a power of attorney for her brother but produced no documentation.

Petitioner's attorney then called petitioner Jose Suero as the second and final witness. Mr. Suero testified that he had leased the subject building and had then made an agreement with Mr. Rivera to rent the basement. Mr. Suero then testified to establish the lease (exhibit 1) between the building's owner and him. Petitioner's exhibit 1 was then admitted. The court also took judicial notice of all pleadings and affidavits of service. Finally, Mr. Suero then denied that he had received any hardship declaration or information about an Emergency Rental Assistance Program application from any respondent. He also confirmed that no one was elderly, disabled, or infirm living in the subject premises. Petitioner's attorney then rested.

Discussion and Conclusion

Upon a review of the motion record and pleadings, the court must deny petitioner's motion for default relief without prejudice. At the time that service of the notice of petition and petition occurred (Apr. 28-29, 2021), the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (CEEFPA) (L 2020, ch 381, § 3) required, in part A, § 5 (2), service of the notice of petition and COVID-19 hardship declaration by personal delivery, or, if such service could not be made by "due diligence," then pursuant to RPAPL 735. (See e.g. Bel Air Leasing LP v Johnston, 73 Misc 3d 809 [Civ Ct, Kings County 2021].)^[FN*]

Here, there are separate affidavits of service for the hardship declaration and the notice of petition and petition. Both{**74 Misc 3d at 726} assert only two attempts at service before resorting to affixing and mailing. No statements are made to demonstrate that due diligence was exercised before resorting to "nail and mail" service. (See Faruk v Dawn, 162 AD3d 744, 745-746 [2d Dept 2018]; Estate of Waterman v Jones, 46 AD3d 63, 66 [2d Dept 2007] [Due diligence requires "genuine inquiries" about the whereabouts of the party to be served]; Merrbill Holdings, LLC v Toscano, 59 Misc 3d 129[A], 2018 NY Slip Op 50410[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018] [Conspicuous place service under RPAPL 735, without a showing of genuine inquiries made, does not suffice as "due diligence" service under CPLR 308 (4)]; Bel Air Leasing LP, 73 Misc 3d at 811-812.)

As the notice of petition and hardship declaration were not served as required by the relevant statute governing their service then in effect, the court is bound to deny the ultimate relief requested by petitioner. Several appellate cases in the Second Department stand for the proposition that a default judgment cannot be granted upon patently defective papers. (See e.g. Gristmill Realty, LLC v Roa, 69 Misc 3d 142[A], 2020 NY Slip Op 51358[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; Lakeview Affordable Hous., LLC v Turner, 66 Misc 3d 142[A], 2020 NY Slip Op 50163[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; Kentpark Realty Corp. v Lasertone Corp., 3 Misc 3d 28, 31 [App Term, 2d Dept, 2d & 11th Jud Dists 2004].)

Accordingly, the ultimate relief requested in petitioner's motion is denied without prejudice. This decision/order will be filed to NYSCEF. Petitioner's attorneys shall serve a copy of this decision/order upon each respondent by first-class mail no later than February 14, 2022.