George Velazquez v. Edward Thompson, As Administrative Judge of The Civil Court of The City of New York, 451 F.2d 202, 2d Cir. (1971)
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Scribd Government DocsGeorge Velazquez v. Edward Thompson, As Administrative Judge of The Civil Court of The City of New York, 451 F.2d 202, 2d Cir. (1971)
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Scribd Government Docs451 F.
2d 202
George VELAZQUEZ et al., Appellants,
v.
Edward THOMPSON, as Administrative Judge of the Civil
Court
of the City of New York, et al., Appellees.
No. 38, Docket 35556.
United States Court of Appeals,
Second Circuit.
Argued Sept. 22, 1971.
Decided Nov. 3, 1971.
Morton P. Cohen, Brooklyn, N. Y., Cornelia McDougald, New York City
(Harold J. Pokel, Gertrude Schwartz, Oscar G. Chase, Jane P. Stern,
Brooklyn, N. Y., of counsel), for appellants.
Steven M. Hochberg, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen.,
State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., of
counsel), for appellees.
Before FRIENDLY, Chief Judge, MULLIGAN and TIMBERS, Circuit
Judges.
MULLIGAN, Circuit Judge:
This is an appeal from an order of the United States District Court for the
Southern District of New York, Irving Ben Cooper, J., denying the plaintiffs'
application for the convening of a three judge court pursuant to 28 U.S.C. Sec.
2281 and Sec. 2284; dismissing constitutional claims against defendants
Thompson, Abrams, Moritt and Feeley; denying plaintiffs' request for issuance
of a preliminary injunction and application for an order determining this action
as a class suit. Plaintiffs claimed federal jurisdiction under 28 U.S.C. Secs.
1343(3), 2201 and 2202. They sought damages, injunctive and declaratory
relief to redress the alleged deprivation of rights secured by the fourth, ninth
and four-teenth amendments of the Constitution of the United States. 42 U.S.C.
Sec. 1983. We affirm.
The plaintiffs in this case are all New York City apartment dwellers who were
summarily evicted pursuant to article 7 of the New York Real Property Actions
and Proceedings Law, McKinney's Consol.Laws, c. 81 for non-payment of rent.
The defendants Thompson, Abrams, Moritt and Feeley are judges of the Civil
Court of the City of New York against whom injunctive relief is sought
preventing the prospective entry of summary default judgments and the issuing
of warrants of eviction except under specified conditions. The defendant,
Herbert Klein, is Marshal of the City of New York and Georgio and Karp are
process servers. The remaining defendants are the plaintiffs' former landlords
and their employees.
We believe that there was no showing that the summary procedures
transgressed constitutional guarantees and therefore the claim for damages,
declaratory and injunctive relief were properly dismissed and the request for a
three-judge court was properly denied.
Since there was no substantial constitutional question involved, the convening
of a three judge court was not appropriate. Heaney v. Allen, 425 F.2d 869, 872
(2d Cir. 1970). In that case we explicitly declined the invitation to follow the
so-called "open and shut" test adopted by the Fifth Circuit in Jackson v. Choate,
404 F.2d 910 (5th Cir. 1968) which is here relied upon by appellants. We see
no reason to depart from the rule of this circuit, (see Johnson v. New York State
Education Department, 449 F.2d 871 (2d Cir. 1971)), even though this case
does present "open and shut" aspects.
Summary proceedings for the recovery of real property were first authorized in
New York in 1820 ([1820] N.Y.Laws ch. 194) and have since been continued
as a speedy and effective means for the recovery of realty. Reich v. Cochran,
201 N.Y. 450, 453-454, 94 N.E. 1080, 1081 (1911). Their present place in the
Real Property Actions and Proceedings Law was the result of a New York Law
Revision Commission study (1962 N.Y.Legis.Doc. No. 65(G)) which
recommended simplification and modernization. The essential substantive and
procedural provisions were carried over from article 83 of the former Civil
Practice Act. Shaw, Summary Proceedings under the Real Property Actions and
Proceedings Law, 49 1/2 McKinney's N.Y.Consolidated Laws, pp. 101, 103104 (1963). Summary eviction procedures exist in virtually every state (52A
C.J.S. Landlord and Tenant Sec. 752 (1968)) and their primary purpose is to
enable landlords to regain possession quickly and inexpensively and thereby
avoid the plenary action for ejectment and its incident delays which had
prompted landlords to short circuit the judicial process by resort to "self-help."
Reich v. Cochran, supra; Tri-State Refreshments, Inc. v. Nitke, 41 Misc.2d 386,
246 N.Y.S.2d 79 (Broome County Ct.1964).
The plaintiffs have here mounted a broadside constitutional attack on article 7
Real Property Actions and Proceedings Law; however, upon analysis, the
principal target is Sec. 735 which provides for the manner of service of process
in such actions. They contend that this section is violative of the due process
guarantees of the fourteenth amendment both on its face and as it has been
applied to them. The precise circumstances of the eviction of the tenants has
been set forth in Judge Cooper's opinion below, 321 F.Supp. 34
(S.D.N.Y.1970). They are not in dispute and there is no need to repeat them
here. It is urged that the statutory scheme is, in any event, frustrated by vicious
process servers who file fraudulent affidavits of service. "Sewer service" is an
ignominious practice which is not limited to summary proceedings for the
eviction of tenants but is also employed in suits on installment payment
contracts for personal property permitting repossession and garnishment,
providing a fertile field for the fleecing of the poor and the disadvantaged. (See
United States v. Brand Jewelers, Inc., 318 F.Supp. 1293 (S.D.N.Y.1970).) We
believe that the statute (Sec. 735) clearly complies with due process
requirements and that its recent amendment, as will be developed infra,
substantially minimizes the opportunity for "sewer service."
Under Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652,
657, 94 L.Ed. 865 (1950) the test of the adequacy of notice for due process
purposes is whether it is "reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections." Since the notice must fit the
circumstances, it is "impossible to draw a standard set of specifications as to
what is constitutionally adequate notice, to be mechanically applied in every
situation." Schroeder v. City of New York, 371 U.S. 208, 212, 83 S.Ct. 279,
282, 9 L.Ed.2d 255 (1962). New York has drawn a separate service of process
section for this special proceeding which is particularly designed and intended
to bring notice home to the tenant. Service of the petition and notice of petition
on a natural person (the plaintiffs in this action) is accomplished in one of three
ways: a) personal delivery to the respondent (personal); or b) delivery to and
personally leaving a copy with a person of suitable age and discretion who
resides or is employed at the property sought to be recovered, if upon
reasonable application admittance can be obtained and such person found
(substituted); or c) if substituted service cannot be accomplished, by affixing a
copy upon a conspicuous part of the property sought to be recovered
(conspicuous). If either the substituted or conspicuous methods of service are
used, a copy of the notice of petition and petition must be mailed to the
respondent (by certified or registered mail) within one day after the delivery or
affixing. (Sec. 735 ([1971] N.Y. Laws ch. 83).)
It is to be noted initially that since this is an action to recover the possession of
premises occupied by a person who is resisting removal, his whereabouts are
obviously fixed and easily determinable. Thus the usual problem of serving a
person whose present residence is unknown, which gives rise to much of the
constitutional litigation in this area (see, e. g., Dobkin v. Chapman, 21 N.Y.2d
490, 289 N.Y.S.2d 161, 236 N.E.2d 451 (1968)), is absent. Moreover, this
statute specifies that the substituted or conspicuous service be made at the
premises sought to be recovered. Appellants' first attack on the statute (Sec.
735) is that it is constitutionally deficient since it does not require that a diligent
effort be first made to accomplish personal service before permitting
substituted or conspicuous service. This is simply frivolous. The general service
of process statute in New York C.P.L.R., Sec. 308, which had required diligent
effort to accomplish personal service, was amended in 1970 ([1970] N.Y.Laws
ch. 852) to eliminate the need for priority of personal service on the
recommendation of the Judicial Conference of the State of New York precisely
because that requirement was considered to be "the single most important cause
of sewer service." (McLaughlin, 1970 Supp. Practice Commentary to
N.Y.C.P.L.R. Sec. 308 pocket part (McKinney Supp. 1970).) The reluctance of
process servers to find the person led to the fraudulent affidavit. Appellants'
suggestion that this discredited priority device be now engrafted on Sec. 735
and that the section is constitutionally infirm without it, is not only without any
substance but it would exacerbate and not ameliorate a deplorable situation.
It should also be noted that the section does not permit "conspicuous" service
until "substituted" service is first attempted. This is a priority also required by
C.P.L.R. Sec. 308 ([1971] N.Y.Laws ch. 176). Its absence before 1970 was the
basis for criticism (see McLaughlin, Practice Commentary to N.Y.C.P.L.R.
Sec. 308, at pp. 474-475 (McKinney 1963)).
10
Both substituted and conspicuous service are incomplete unless within one day
thereafter, the petition and notice of petition are mailed to the respondent. In
the case below plaintiffs urged that this statutory safeguard was rendered
ineffective by reason of perjurious affidavits of mailing. They suggested that
there be a registered or certified mailing amendment. (321 F.Supp. at 40). This
point has evanesced, since the New York Legislature has amended Sec. 735
([1971] N.Y.Laws ch. 83) to require mailing to the respondent "by registered or
certified mail." Prior to the amendment it was the word of the process server
against the word of the respondent and as Judge Weinfeld has pointed out: "No
matter how truthful his denial of service may be, his version may not be
accepted by the trier of the fact." United States v. Barr, 295 F.Supp. 889, 892
(S.D.N.Y.1969) (footnote omitted). Since this amendment only became
effective on September 1, 1971, it is too soon to gauge its effectiveness.
However, it is patently designed to minimize "sewer service." If the mailing is
questioned and the server is unable to produce postal return receipts it will no
longer be a question of whom to believe.
11
Thus we hold that Sec. 735 as amended in 1971 is carefully drafted and
calculated to apprise tenants of the pendency of the action and is not vulnerable
to constitutional attack. Having made every effort to insure that tenants receive
ample notice so as to prevent unintentional defaults, appellants' objection to the
postservice procedures of article 7, are much less meritorious than they were
when Judge Cooper found them to be insubstantial.
12
We have carefully examined the arguments of the appellants directed to the
constitutionality of article 7 under the fourth and ninth amendments of the
constitution and the "equal protection" clause of the fourteenth amendment and
find them to be without merit.
13
Affirmed.
