


































Online Version -- Volume 10, Issue 2


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

A Game of Telephone: The Evolution of Conspicuous

Service in New York State

Zachary Miller156

This article discusses the evolution of how conspicuous service
is regarded by trial courts in New York state. Conspicuous
service or “nail and mail service” is the process of nailing
notice of an upcoming court hearing to a visible place on the
property of a defendant. This article examines the legitimacy of
this method of service as it pertains to money judgments in
summary proceeding cases.

I. Explanation of New York State Court System

Unlike in most states, the Supreme Court of New York
State is the court, where most cases are first heard, with
original jurisdiction. When cases are appealed from the state
Supreme Court, they reach a level known as the Appellate
Division. The Appellate Division is a system of four appellate
courts, known as Departments, which each preside over a
separate section of the state. New York City is broken up
between the First and Second Departments.157

The highest court in the State of New York is the Court
of Appeals. New York State courts are currently bound by the
Civil Practice Laws and Rules (CPLR) and the Real Property
Actions and Proceedings Law (RPAPL). Prior to the adoption
of the CPLR, the courts were governed by the Civil Practice

157 Lawrence K Marks and Janet DiFiore, New York State Unified Court
System New York State Courts An Introductory Guide, n.d..

156 Brandeis University Undergraduate, Class of 2025.

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Act (CPA). All of these statutes were ratified by the New York
State Legislature.158

II. Explanation of The Process for Affecting Service

When a plaintiff seeks to sue a defendant in a state
court, the state court must acquire jurisdiction over the
defendant. A petitioning party must hire a process server to
deliver a respondent with notice of the actions the petitioning
party is bringing.159 There are three major types of service a
process server can provide. Firstly, there is in-hand which
directly serves the individual named in an action.160 Secondly, a
substituted service refers to notices that are served upon an
individual, of the proper age and discretion, substituted to
receive notice on behalf of the individual named in the
action.161 Substituted and in-hand services are sometimes
jointly referred to as personal services. Conspicuous service or
“nail and mail” service are the final type of service.
Conspicuous service entails a process server affixing notice
upon a conspicuous part of the respondent’s property and
mailing a copy of the notice to the respondent’s last known
residence.162

During the late nineteenth century and early twentieth
century, all services, excluding in-hand service, were
unconstitutional.163 In 1877, the United States Supreme Court
heard the case of Pennoyer v. Neff. Pennoyer, which was
decided in the aftermath of the ratification of the Fourteenth
Amendment. Pennoyer held that the only way for a state court

163 Dolan v. Linnen.
162 Dolan v. Linnen.
161 Dolan v. Linnen.
160 Dolan v. Linnen (2003)

159 A process server is a third party licensed to serve a defendant with the
notice.

158 “The CPLR at Fifty: Its Past, Present, and Future,” N.Y.U Journal of
Legislation & Public Policy 16, no. 3 (2013).

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to gain jurisdiction over an individual without violating their
due process rights was to serve them while they were
physically present.164 The evolution of methods of service has
had a wide range of implications for American jurisprudence.
For a court to take any action directly impacting an individual,
the court must first be granted jurisdiction over that individual.
This process ensures that individuals have notice of their
involvement in legal matters and can adequately prepare for
legal proceedings. Therefore, issues regarding the legitimacy of
various methods of service have the capacity to affect all civil
actions. This compendium specifically chronicles the evolution
of statutory and common law regarding the role these forms of
service play in summary proceeding cases in New York state.

III. Explanation of a Summary Proceeding

In 1820, the New York State Legislature created
summary proceedings, an expedited process that provided
landlords with an easy means to retrieve possession of a
property from tenants.165 Prior to the implementation of this
policy, a tenant’s decision to stop paying rent was insufficient
for a landlord to terminate a lease. This deficiency would
prompt landlords to insert clauses into their leases which
allowed them to reenter the property if rent payments ceased.166

In 1924, an amendment to the Civil Practice Act (CPA)
sought to allow courts to award rent during summary
proceedings. Previously, landlords would have to commence a
separate and costly action to collect rent. Additionally, these
separate proceedings were antithetical to the nature of

166 Stephen Ross, “Converting Nonpayment to Holdover Summary
Proceedings: The New York Experience with Conditional Limitations
Based Upon Nonpayment of Rent,” Fordham Urban Law Journal 15, no. 2
(1987): 48.

165 Dolan v. Linnen.
164 Pennoyer v. Neff (Supreme Court of the United States 1877).

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summary proceedings, which were expedited hearings. These
judgments, which award a landlord rent, are known as money
judgments.167

IV. McDonald and the Conflict of Law

In the 1927 case of theMatter of McDonald v. Hutter,
the process server unsuccessfully searched for the tenants at
their respective residences for in-hand service. The process
server also unsuccessfully searched for another individual for
substituted service. Hence, the process server resorted to
conspicuous service to serve the tenants.168 The lower court
found that the language of the CPA amendment, its plain
meaning and the typical definitions of the words, could not be
construed to limit money judgments to in-hand service.169 The
amendment did not specify any permissible or impermissible
methods of service. Therefore, conspicuous service could
permissibly be used for a landlord to receive a money
judgment.170

The case was appealed to the Fourth Department in
1929; the diligence of the server was undisputed when the case
was appealed to the Fourth Department. The sole contention of
the appellant was that the CPA only permitted a money
judgment for in-hand service.171 The Fourth Department
conceded that the language of the CPA was broad enough to
encompass the interpretation of the lower court, but the court
decided that the broadness of the statute’s language required it
to assess legislative intent. The court believed that the
Legislature had only intended to allow money judgments for
in-hand service based on the tradition of summons being

171 Matter of McDonald, 405.
170 Matter of McDonald v. Hutter.
169 Matter of McDonald v. Hutter, (County Court Niagara County 1927).
168 Matter of McDonald (4th Dep’t 1929).
167 Ressa Family, LLC v. Dorfman, (2002).

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delivered through in-hand service and from the precedent set in
Pennoyer.172 The major issue embedded in the Fourth
Department’s opinion in McDonald was balancing the
intentions of the Legislature in their 1924 amendment with the
boundaries of constitutionality framed by Pennoyer. These
efforts to reconcile the perceived contradiction led the Fourth
Department to reverse the lower court’s ruling, despite the
Department’s concession that the language was broad enough
to convey the lower court's interpretation.173

McDonald was largely unchanged until 1945 when
Pennoyer was overturned by the case International Shoe
Company v. Washington. In International Shoe, the Supreme
Court upheld substituted service as a form of service in
compliance with due process. This effectively reversed the
Pennoyer rule, which only permitted in-hand service.174

After International Shoe, the opinion in McDonald
should have been rendered moot. The constitutional concerns
which formed the basis for theMcDonald ceased to exist under
International Shoe.175 Additionally, in 1954, the CPA was
amended to eliminate the requirement that due diligence be
shown in attempting in-hand service before resorting to
conspicuous service.176 The prerequisite standard became one
of reasonable application, a more flexible threshold than due
diligence. If a reasonable application proved fruitless,
conspicuous service was permitted.

The CPA amendment indicated a legislative intention to
make conspicuous service a more readily available option to
landlords and their process servers.177 These sentiments that the

177 Dolan v. Linnen.
176 Matter of Seagram Sons v. Rossi (1965).
175 Dolan v. Linnen.

174 International Shoe Co. v. Washington, (Supreme Court of the United
States, 1945).

173 Matter of McDonald, 406.
172 Matter of McDonald, 406.

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Legislature appeared to harbor are noteworthy as they pertain
to subsequent judicial developments.

V. McDonald in the Wake of International Shoe

The 1961 case of Matter of Raymond v. Grotz is a
noteworthy decision because it was decided in the aftermath of
International Shoe and the 1954 CPA amendment. In
Raymond, a process server was unable to find the tenants and
resorted to conspicuous service.178 Raymond found that service
was consistent with the amended CPA, but the court
maintained that personal service was vital for a money
judgment. The court argued that McDonald’s precedent was
that money judgments could only be awarded for conspicuous
service if a court order authorized it once it was shown that
personal service was impossible. Raymond chose to uphold
McDonald as a binding precedent.179 McDonald was cited
despite the constitutional restraints of Pennoyer no longer
binding the court in Raymond. Additionally, the due diligence
prerequisite for conspicuous service had already eased the
process during this time.

Raymond is notable because it was decided between the
1954 CPA amendment and the 1963 repeal of the CPA. During
this formative period, Raymond upheld McDonald as binding
and persuasive precedent. Raymond deferred to McDonald
despite the Pennoyer case, the basis of McDonald, no longer
being applicable.180 On September 1, 1963, the New York State
Legislature repealed and replaced the CPA with the New York
Civil Practice Laws and Rules (CPLR) and the Real Property
Actions and Proceedings Law (RPAPL).181 When the CPA was

181 Dolan v. Linnen.
180 Raymond, 926.
179 Raymond, 926.
178 Matter of Raymond v. Grotz, 926.

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repealed, the statute interpreted by the Fourth Department in
McDonald ceased to be binding law.

VI. McDonald in the Wake of the CPLR

The CPLR permitted substituted service and
conspicuous service when in-hand service could not be
performed with due diligence, while the RPAPL carried over
the reasonable application standard from the 1954
amendment.182 Two months after the repeal of the CPA,
Wayside Homes v. Upton was heard on November 26, 1963.183
Wayside interpreted the RPAPL as delegating the details of
service for a money judgment to the CPLR. Wayside derived
this from a provision in the RPAPL which stated that, “service
of the notice of petition and petition shall be made in the same
manner as personal service of a summons.”184 In Wayside, the
process server engaged in substituted service.185 A notice of
petition is the document a tenant is presented with to acquire
jurisdiction in a summary proceeding.

The court in Wayside used this language to surmise that
process servers delivering summary proceeding papers ought to
be held to the same standard as one delivering a summons.186
Thus, Wayside adopted the CPLR and decided that the RPAPL
was not the governing statute. At the time, the CPLR’s standard
for affecting substituted service or conspicuous service in a
summons was due diligence. The court acknowledged that the
server had complied with the RPAPL, but that the server failed

186 Wayside, 1087.
185 Wayside, 1087.
184 Wayside Homes v. Upton (1963).

183 Interestingly, the case was initially supposed to be heard on Monday
November 25, 1963. But, courts were closed that day in commemoration of
the assassination of President John F. Kennedy on Friday, November 22. So,
the case was heard on November 26.

182 Dolan v. Linnen.

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to comply with the due diligence required by the CPLR.187 The
landlord’s compliance with the RPAPL was not enough to
award a landlord a money judgment. This case is notable for its
ruling that the principles in McDonald remained binding and
that a similar legislative intent undergirded all of these statutes.

The legislative intent described by the court in Wayside
makes no mention of the 1954 CPA amendment which replaced
the due diligence standard with one of reasonable
application.188 In this amendment, the Legislature indicated a
desire to loosen the standard a server needed to meet to affect
service. Additionally, this understanding of the intent of the
Legislature fails to account for a section of the CPLR which
states that “[e]xcept where otherwise prescribed by law,
procedure in special proceedings shall be the same as in
actions, and the provisions of the civil practice law and rules
applicable to actions shall be applicable to special
proceedings.” 189 The RPAPL is a statute intended to govern
summary proceedings. Since 1924, the intent of the Legislature
had been to merge actions for rent into summary proceedings
to expedite the process on all fronts.190 Even if the language
equating summary proceedings and summons kept the process
bound by the CPLR, the Legislature removed that language
from the RPAPL in 1965.191

This was significant because Wayside’s ruling was
predicated on the idea that these proceedings ought to mirror a
summons.192 Wayside incorporated the CPLR because the court
believed that this language removed money judgments from the

192 “Substituted Service--Section 735 of the RPAPL and Section 308(3) of
the CPLR,” St. John’s Law Review 38 (May 1964).

191 Arnold v. Lyons, (March 2003).
190 Matter of McDonald.
189 Dolan v. Linnen, 324.
188 Wayside.
187 Wayside, 1088.

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purview of the RPAPL’s language.193 But, the omission of this
language indicated an intent to insulate summary proceedings
from the regiment of the CPLR. That same year, Matter of
Seagram Sons v. Rossi was decided.194 In Seagram,
conspicuous service and substituted service were used.195 In
each instance, the process server made only one attempt at
in-hand service. The court ruled that it is not necessary to show
due diligence for in-hand service before resorting to
conspicuous service or substituted service for a summary
proceeding based on the RPAPL.196 The court in Seagram
believed that the RPAPL’s flexible requirements were an
intentional attempt by the Legislature to maintain a speedy
process for landlords who sought to effectuate summary
proceedings.

Conversely, the court in Seagram pointed out that the
CPLR permitted the service of a summons through substituted
service or conspicuous service only when due and diligent
efforts to serve in-hand had failed.197 So, if a landlord does
affect conspicuous service or substituted service without
meeting the due diligence requirement, they are not entitled to
a money judgment. Seagram ruled that both substituted and
conspicuous services required a preemptive exercising of due
diligence in a server’s attempts to execute an in-hand service.198
Seagram cited Wayside and Raymond as precedent for not
awarding a money judgment for conspicuous service without
the due diligence required by the CPLR.199

Seagram’s ruling is notable for its preservation of
Wayside’s due diligence prerequisite and its affirmation of the

199 Seagram.
198 Seagram, 428.
197 Seagram, 428.
196 Seagram, 428.
195 Seagram, 428.
194 Matter of Seagram Sons v. Rossi, (1965).
193 Wayside, 1089.

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adoption of the CPLR for assessing these kinds of cases.
Wayside’s adoption of the CPLR had been rooted in language
found in the RPAPL which analogized notice of petitions and
summons.200 The redaction of this language in 1965 no longer
mandated that the service in summary proceedings mirror the
service of a summons. Therefore, it was no longer necessary to
apply the standard of the CPLR; instead courts should have
subjected summary proceedings to the RPAPL entirely.201 As a
result, the Legislature nullified the precedent set in Wayside
because Wayside’s precedent was grounded in this language
justifying the adoption of the CPLR. However, Seagram’s
vindication of Wayside was instrumental in maintaining an
adherence to the CPLR when assessing the viability of money
judgments.

In 1971, 1405 Realty Corp v. Napier denied a money
judgment as a result of a process server’s perceived lack of
compliance with the CPLR.202 In Napier, there were two visits
to the tenant’s home to affect personal service before resorting
to conspicuous service. Napier cites Wayside and Seagram as
precedent for requiring a prerequisite showing of due
diligence.203 Napier cites McDonald as precedent for how the
method of service affects a landlord’s ability to win a money
judgment.204 In Napier, the court acknowledged that the process
server complied with the RPAPL’s mandates for the service of
process, specifically conceding that these guidelines are easier
to meet because of the nature of summary proceedings as
expedited relief.205 Yet, the court found that the process server
had not complied with the CPLR and so denied the money
judgment. The court in Napier should not have been applying

205 Napier, 794.
204 Napier, 794.
203 Napier, 795.
202 1405 Realty Corp. v. Napier, 795 (1971).
201 New York City v. Wall Street Racquet Club (1987).
200 Wayside.

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the CPLR in the first place. By this point, Seagram and
Wayside had been overturned by the Legislature’s omission of
the language equating summary proceeding notice with that of
a summons.206 There is no further evidence to indicate that
Napier was appealed.

The due diligence prerequisite for substituted services
was removed from Section 308 of the CPLR in 1970. As a
result of this amendment, in-hand service and substituted
service were equated under one category of personal service.207
In the 1972 case Fairhaven Apartments v. Dolan, a process
server affected substituted service upon a tenant. The court
ruled that this complied with the RPAPL and the CPLR. The
court in Fairhaven distinguished itself from the court in
Wayside based on the absence of a due diligence prerequisite
for affecting substituted service.208

VII. Ressa and Dolan: Taking Judicial Notice of the

Problem

In the case Ressa Family LLC v. Dorfman, personal
service was not used. Ressa contended that the Legislature
never made any indication that the amalgamation of RPAPL
and CPLR for summary proceedings was necessary.209 Instead,
the court in Ressa argued that efforts to combine these two
statutes is the result of a misunderstanding of theMcDonald
rule. Ressa found that the RPAPL offers sufficient
constitutional protections to tenants.210 Ressa reasoned that the
purpose of a summary proceeding is to provide expedited
relief. Therefore, it would be logical to ease the burden of

210 Ressa, 321.
209 Ressa, 320.
208 Fairhaven Apts. No. 6 v. Dolan, (1972).
207 Dolan v. Linnen.
206 Dolan v. Linnen.

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serving notice. Ressa ultimately petitioned the Legislature or
another appellate court to overrule McDonald. But, Ressa’s
ruling upheld McDonald and decided that money judgments
may only be awarded in the event of personal service. The
court in Ressa was a trial-level court and did not believe it had
the ability to tamper withMcDonald without appellate
jurisdiction or legislative prerogatives.211

Ressa was decided in 2002 and shortly after, in January
of 2003, Dolan v. Linnen was decided. In Dolan, a process
server made four attempts to serve the tenant in-hand. After
these four attempts, the process server engaged in conspicuous
service.212 Dolan asserted that the legislative intent surmised in
McDonald had been abrogated by the Legislature through
subsequent statutory amendments. Dolan advocated utilizing
the CPLR for assessing the legitimacy of conspicuous service.
Dolan advised awarding money judgments when conspicuous
service met the due diligence standard in the CPLR.213

Following the decision of Dolan in January 2003, in
March of the same year, Judge Kenneth Gartner, who presided
over the Ressa case, authored the decision in Arnold v. Lyons.
Arnold further elucidated Ressa and responded to Dolan. In
Arnold, tenants were served by conspicuous service. Arnold
awarded possession but denied the money judgment, citing
Ressa. Arnold affirmed Ressa’s assertion that the courts which
sought to award money judgments for methods of service other
than personal service misunderstood McDonald. Arnold
described Dolan as an opinion which adopts Ressa’s historical
analysis but which arrived at a diametrically opposed
conclusion based on a narrow but crucial area of difference.214

Arnold stated that Ressa and Dolan agree that the CPA,
under which McDonald was decided, has largely been adopted

214 Arnold v. Lyons, (March 2003).
213 Dolan v. Linnen.
212 Dolan v. Linnen, 303.
211 Ressa, 323.

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into the RPAPL. Both agree that McDonald construed the
Legislature to have sought to limit delivery to personal service.
Arnold contended that Ressa and Dolan agreed that the
decision in McDonald stemmed from a desire to avoid a novel
practice and avoid conflicting with Pennoyer. Arnold posited
that Ressa and Dolan are in agreement that McDonald’s
methodology was flawed and that the court in McDonald
attempted to incorporate an unexpressed intent contrary to the
plain meaning of the text. Arnold affirmed that both Ressa and
Dolan believe that McDonald is no longer defensible on its
original grounds.215

Arnold concluded that the fundamental disagreement
between Ressa and Dolan stems from their differing view of
stare decisis, the legal principle that judges should adhere to
precedent. Ressa believed the courts must follow McDonald,
while Dolan did not. Arnold asserted that precedents involving
statutory interpretation are entitled to a greater degree of
stability. The judge in Arnold argued that it is the Legislature’s
job to correct any misinterpretation of legislative intent. But,
that courts with original jurisdiction do not have the capacity to
influence these kinds of issues.216

Arnold submitted that the Legislature could have easily
revised the RPAPL to permit all forms of service for all
benefits. The fact that the Legislature still has not done that
shows that McDonald’s understanding of the Legislature’s
intentions remains. Arnold contends that applying the RPAPL
as written might effectuate the intent of the Legislature in 1924
but would fail to uphold the intent of the current Legislature.217
Since the Arnold ruling, most courts have adopted the Dolan
rule.

217 Arnold.
216 Arnold, 15.
215 Arnold, 6.

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VIII. Adoption of the Dolan Rule: “Evisceration” of

McDonald

In the case of Avgush v. Berrahu, from October 2007, a
process server attempted in-hand service on five separate
occasions before resorting to conspicuous service.218 In the
lower court, after the tenants failed to appear, the landlord was
only granted possession. Avgush found that the conduct of the
process server met the reasonable application standard found in
RPAPL section 735.219 Avgush also found that it would have
satisfied the due diligence standard found in subsection 4 of
section 308 of the CPLR. This case cites Dolan v. Linnen as a
precedent for awarding a money judgment after satisfying the
due diligence standard necessary for conspicuous service under
section 308 of the CPLR.220 Avgush acknowledges that the
constitutional landscape has changed substantially since the
ruling in McDonald. The court ultimately awarded a money
judgment.

In December 2009, Expressway Village v. Denman was
decided. The lower court awarded possession but not a money
judgment because the process server resorted to conspicuous
service. The appeal raised the sole issue of whether a trial court
in a summary proceeding can enter a money judgment when
notice is served through conspicuous service.221 Expressway
states that the rule in McDonald appears to be incorrect and
speculates that the Fourth Department would no longer apply
it. Expressway cites Avgush to show that an appellate court has
rejected McDonald and adopted the reasoning of cases like
Dolan.222 Expressway posits that the absence of a similar ruling

222 Expressway, 957.
221 Expressway Village, v. Denman, 956 (2009).
220 Avgush, 90.
219 Avgush, 86.
218 Avgush v. Berrahu, 86 (2007).

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in any other higher court allows the First and Third
Departments to adopt Avgush. Expressway contends that if the
Fourth Department wishes to preserve McDonald, they can
always reverse this decision.223

Subsequent courts have denied that Expressway
overturned McDonald because the County Court of Niagara
County is a lower court than the Fourth Department.224
Regardless, the Dolan rule is the one that Expressway adopted.
The Dolan rule adopted the policy of melding the RPAPL and
CPLR and determining the viability of a money judgment
based on whether conspicuous service was performed after a
process server used due diligence to attempt personal
service.225 But, with the Dolan rule in place, the correct
standard for these cases is still not being applied by judges.

A contemporary example comes from the 2022 case
Li-Seabrooks v. Pimento where two attempts were made at
personal service before the process server resorted to
conspicuous service. The respondent argued that the process
server did not exercise due diligence before resorting to
conspicuous service. Pimento holds the petitioner to the
standard of due diligence and distinguishes this standard from
the reasonable application standard under the RPAPL. Pimento
states that one attempt inside normal working hours and one
attempt outside normal working hours satisfies reasonable
application, but no rigid standard can be prescribed for due
diligence. The opinion cites Dolan v. Linnen’s finding that two
attempts at personal service satisfy reasonable application but
not due diligence. Ultimately, the court ruled in the
respondent's favor and denied a money judgment.226

226 Li-Seabrooks v. Pimento (2022).
225 Dolan v. Linnen.
224 Cornhill LLC v. Sposato (2017)
223 Expressway.

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IX. Significance and Implications

American society is rooted in contracts, both implicit
and explicit. These contracts are agreements predicated in
conditions which compel each party to keep their word when a
sensitive deal is made. When these contracts are breached,
people ought to be able to look to the judicial system, and the
due process rights enshrined within it, for an opportunity to
defend their rights.227 In the case of landlord-tenant
agreements, the tenant is offered the benefit of shelter by the
landlord and the landlord is offered the benefit of rent by the
tenant.228 The New York State Legislature conceived the
summary proceeding as a mechanism for affording landlords
an expedited hearing when their rights under this contract were
denied. Through subsequent legislative amendments, these
hearings became a forum for landlords to redress the loss of
their contractual benefit because they could petition for a
money judgment.229

At the root of this issue is the importance of allowing
individuals to be compensated for situations where they are
taken advantage of. While it is necessary to safeguard the
liberties of tenants and ensure they can peacefully enjoy
shelter, it is also important to safeguard the rights of a landlord
when their property is occupied without their consent while
they are not being duly compensated. The purpose of a
summary proceeding is to right these wrongs when they occur
and award landlords the money they are owed.230 However,

230Ross, “Converting Nonpayment to Holdover Summary Proceedings: The
New York Experience with Conditional Limitations Based Upon
Nonpayment of Rent.”

229 Matter of McDonald v. Hutter.
228 Ross.

227Ross, “Converting Nonpayment to Holdover Summary Proceedings: The
New York Experience with Conditional Limitations Based Upon
Nonpayment of Rent.”

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New York State courts continue to deny this restitution to
landlords on the basis of obsolete legal analysis.

An analogy for this situation is a game of telephone.231
Imagine a straight line of players in a game of telephone, the
cases which deal with this issue in chronological order. The
player tasked with formulating the message is the Legislature.
The Legislature releases the message in the form of statutes.
By passing a statute, the Legislature passes along their message
for courts to interpret. Along the way, courts have
misinterpreted and mistranslated the original message leading
to confusion. A distinction between the legislative process and
a game of telephone, however, is that higher courts impact how
legislation is enacted and how courts rule on issues.

The Fourth Department was faced with a difficult
decision when theMcDonald case was appealed to them.
Summary proceedings were intended to be an expedited
process for securing control of one’s property when a tenant
ceased to pay rent. The 1924 CPA statute was intended to
enjoin money judgments in this process to further expedite it.232
The Fourth Department recognized that the statute contained
no enumeration of limitations contingent upon the method of
service. Simultaneously, Pennoyer was a binding precedent
which declared anything other than in-hand service
unconstitutional. Thus, the Fourth Department fabricated a
legislative intent to avoid disrupting a tradition of recognizing
in-hand service as the only legitimate form of service, as
enforced by Pennoyer.233 TheMcDonald decision was rendered
moot when Pennoyer was overturned by International Shoe. At
this point, any constitutional qualms surrounding methods of
service other than in-hand service were eviscerated.234

234 Ressa.
233 Matter of McDonald.
232 Matter of McDonald v. Hutter.
231 Ressa.

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Furthermore, the CPA, which governed theMcDonald
case, was repealed in 1963, yetWayside chose to cite
McDonald as a binding precedent for adjudicating cases
pertaining to the RPAPL.235 Additionally, Wayside opted not to
submit to the RPAPL as the governing statute and instead
subjected summary proceedings to the more scrutinous CPLR
to award money judgments.236 Ultimately, this subjected
summary proceedings to a statute the Legislature likely did not
intend for them. Wayside justified this by pointing to a sentence
in the RPAPL seeking to equate summary proceedings with
summons, a process governed by the CPLR. The court in
Wayside believed this was an indication the Legislature
intended for courts to adjudicate these cases, using the
CPLR.237

Even if this was their initial intention, the Legislature
revised the RPAPL in 1965 to omit this language.238 This action
indicated a desire to keep summary proceedings within the
parameters of the RPAPL, yet courts continued to wrongfully
assess these cases under the CPLR.239 Even Ressa and Arnold,
which acknowledged this method of jurisprudence was
incorrect, applied McDonald and denied a money judgment for
a case which did not involve personal service. The rationale
was a desire to comport with the intentions of the current
Legislature. Since the Legislature could amend the RPAPL to
explicitly enumerate the permissible methods of service and
did not, Judge Gartner believed that trial courts were still
forced to uphold this ingrained practice.240

240 Arnold.
239 Napier.

238 “McManus v. Condren,” All Decisions, October 27, 2022,
https://ir.lawnet.fordham.edu/housing_court_all/676.

237 Wayside.

236 “Substituted Service--Section 735 of the RPAPL and Section 308(3) of
the CPLR.”

235 “Substituted Service--Section 735 of the RPAPL and Section 308(3) of
the CPLR.”

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Returning to the analogy of a game of telephone, a
noteworthy distinction between the legislative process and a
game of telephone is that the Legislature can amend their
statutes. This would be like a player sending new messages
down the telephone line while other players are still trying to
decipher the first message. In this way, courts are not bound by
the Legislature’s initial statute and should take subsequent
revisions into consideration. Even though Judge Gartner’s
understanding of the RPAPL is valid, he chose not to rule in
accordance with this philosophy because he believed that the
Legislature did not convey any intention of ameliorating how
courts adjudicated this matter.241 Judge Gartner argued that if
he did not comport withMcDonald, he would be upholding the
intent of the Legislature in 1924, but not necessarily the
contemporary legislative intent on this issue.242

Judge Gartner’s belief, however, discards all of the
subsequent legislative developments between 1924 and the
present day which indicated a desire to reform the process.243
Throughout this time, it was courts that remained stagnant, not
the Legislature. The Legislature engaged in periodic revisions
designed to steer courts towards enforcing less stringent service
requirements for summary proceedings. For example, after
Pennoyer, the CPA eliminated the due diligence prerequisite
for a process server’s attempts to affect personal service before
resorting to substituted service or conspicuous service.244 This
development was ignored by Raymond, which chose to defer to
McDonald.245 The Legislature then repealed the CPA and
overhauled the statutory framework with the CPLR and the
RPAPL. In Wayside, these developments were ignored and the
case held that the same intent surmised by McDonald

245 Raymond.
244 Dolan v. Linnen.
243 Dolan v. Linnen.
242 Arnold.
241 Arnold.

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undergirded these statutes.246 Wayside pointed to the provision
equating summons and summary proceedings in the RPAPL to
come to this conclusion.247 Thus, the Legislature removed this
language from the statute entirely.248 Yet, Napier chose to
follow Wayside and maintained a framework which ignored
subsequent legislative developments.249

Ressa recognized the contradictions embedded in this
saga, yet Judge Gartner believed that it was necessary to adhere
to stare decisis.250 Even after Judge Gartner witnessed Dolan
perpetuating the architecture of Wayside, he refused to carve
out a better path in Arnold because he did not believe the
Legislature expressed a desire to see the RPAPL govern
summary proceedings.251 As a result of this series of
mistranslations and misinterpretations of legislative intent,
individuals have been robbed of their ability to be justly
compensated for wrongs they faced at the hands of those who
unjustly occupied their property. As evidenced by Pimento, this
mistake continues to occur in contemporary jurisprudence. This
is antithetical to the legislative intent which undergirds
summary proceedings.252 Additionally, this fails to heed to the
legislative intent to have summary proceedings be governed by
the RPAPL’s standard of reasonable application.253 Yet, this
practice has endured for over a century. In the time since this
issue first emerged, there have been a variety of technological
and social developments that have altered one’s capacity to

253 Arnold.

252 Ross, “Converting Nonpayment to Holdover Summary Proceedings: The
New York Experience with Conditional Limitations Based Upon
Nonpayment of Rent.”

251 Arnold.
250 Arnold.
249 Napier.
248 Ressa.
247 Wayside.

246 “Substituted Service--Section 735 of the RPAPL and Section 308(3) of
the CPLR.”

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gain information. Despite these developments, the process for
delivering notice of one’s involvement in legal proceedings has
not evolved.

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Bibliography

Marks, Lawrence K, and Janet DiFiore. New York State Unified
Court System New York State Courts An Introductory
Guide, n.d.

“McManus v. Condren.” All Decisions, October 27, 2022.
https://ir.lawnet.fordham.edu/housing_court_all/676.

Ross, Stephen. “Converting Nonpayment to Holdover
Summary Proceedings: The New York Experience with
Conditional Limitations Based Upon Nonpayment of
Rent.” Fordham Urban Law Journal 15, no. 2 (1987):
48.

“Substituted Service--Section 735 of the RPAPL and Section
308(3) of the CPLR.” St. John’s Law Review 38 (May
1964).

“The CPLR at Fifty: Its Past, Present, and Future.” N.Y.U
Journal of Legislation & Public Policy 16, no. 3 (2013).

Cases Cited

1405 Realty Corp v. Napier, 68 Misc. 2d 793 (1971).
Arnold v. Lyons, NY Slip Op 50766[U] (2003).
Avgush v Berrahu, 17 Misc 3d 85 (2007).
City of New York v. Wall St. Racquet Club, 136 Misc.2d 405

(1987).
Cornhill LLC v. Sposato, 51 Misc.3d 840, (2017).
Dolan v. Linnen, 195 Misc 2d 298 (2003).
Expressway Village, Inc. v. Denman, 26 Misc.3d 954 (2009).
Fairhaven Apts. No. 6 v. Dolan, 72 Misc 2d 590 (1972).
International Shoe Co. v. Washington, 326 U.S. 310 (1945).
Li-Seabrooks v. Pimento, Slip Op. 22131 (2022).
Matter of McDonald v. Hutter, 130 Misc. 631 (1927).
Matter of Mcdonald, 225 App Div 403 (1929).
Matter of Raymond v. Grotz, 31 Misc. 2d 925 (1961).

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Matter of Seagram Sons v. Rossi, 45 Misc. 2d 427 (1965).
Pennoyer v. Neff, 95 U.S. 714 (1877).
Ressa Family LLC v. Dorfman, 193 Misc. 2d 315 (2002).
Wayside Homes v. Upton, 40 Misc. 2d 1087 (1963).

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