Fleming v. Flanagan

In Fleming v. Flanagan, (178 Misc.2d 723, 680 N.Y.S.2d 427 [Just Ct, Town of Ramapo 1998]), the Justice Court observed that "confusion has led some of the courts (this court included) to the 'apparent rule' that money judgments were not allowable in nonpersonal delivery cases." (178 Misc.2d at 725). The Justice Court thereupon identified a "public policy" supporting a deviation from the black-letter rule (178 Misc. 2d at 727): "To relegate a landlord to bring an action at law for rent ... is economically unfeasible aside from resulting in a duplicity of litigation in an already crowded court system not even envisioned when the Legislature in 1924 permitted both possessory and money judgment relief to be accomplished at one time and in one court. For the reasons stated ... there should not be, if indeed there is, a prohibition of entering a money judgment against a tenant in a summary proceeding where he has not been served by personal delivery and has not appeared. Of course, the landlord must provide, by affidavit of his process server, the due diligence required by CPLR 308 (4) if process is by conspicuous service. Service upon a person of suitable age and discretion residing or employed at the subject premises should suffice pursuant to CPLR 308 (2) and RPAPL 735 without a showing of due diligence."