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. 63 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 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). 64 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 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). 65 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 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). 66 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 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. 67 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 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. 68 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 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. 69 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 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. 70 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 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. 71 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 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. 72 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 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. 73 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 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. 74 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 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. 75 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 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). 76 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 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. 77 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 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.” 78 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 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. 79 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 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.” 80 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 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. 81 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 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.” 82 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 gain information. Despite these developments, the process for delivering notice of one’s involvement in legal proceedings has not evolved. 83 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 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). 84 Brandeis University Law Journal Spring 2023, Volume 10, Issue 2 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). 85