Borg v Freeley (2017)
In this case a tenant’s application for appeal to vacate a portion of monetary recovery awarded to the landlord in the final judgment, was rejected. The tenant was ordered to pay the amount of $91, 254 to the landlord in a non- payment summary proceeding. The monetary recovery was applied due to the non-attendance of the tenant during the summary proceeding.
In order to successfully apply to the courts for monetary recovery, the landlord must have established that the petition and notice of petition were served. Serving of the documentation must have been done; either, personally, or through the process server exercising all reasonable “due diligence” in their duties. The carrying out duties this way was to be done prior to the server resorting to the act of “conspicuous service,” as defined within the cases of Oppenheim v Spike 107 (1980) and Avgush v Berrahu 17 Misc (2007)
Within the Borg case, whilst the tenant was visited on two occasions in an attempt to deliver the documentation (one of which was during normal working hours) there was no mention (within the server’s affidavit) of the server’s attempts to identify the business address, whereabouts or work schedule of the tenant, as per Serraro v Staropoli, 94 AD3d 1083 [2012]. It was regarded that although, the two attempts served to satisfy the “reasonable application standard” this was insufficient to establish the due diligence required to obtain personal jurisdiction over the tenant.
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