Court of Appeals Holds One Attempt at Personal Service Enough to Permit Nail and Mail Under NYC Charter

Service of papers saying that you violated a local municipal law implicates important due process concerns. If a property owner doesn’t get notice that something at his or her property violates local zoning regulations, he or she won’t have an opportunity to contest the violation or try to work out a deal to fix it. You might be surprised how frequently that comes up.

In civil litigation, the CPLR requires that a party make reasonable efforts to personally serve the other side—at least three attempts to deliver the papers on different days and at different times—before the party can resort to nail and mail service. After those times trying personal service, the party can then nail a copy of the papers to the door of the house and mail a copy there too. But nail and mail is a last resort in civil litigation when other ways of service haven’t worked.

The same isn’t true under the New York City Charter, however. The Charter allows the Department of Buildings to serve notices of zoning violations by nail and mail, but only if “a reasonable attempt has been made to deliver such notice to a person in such premises upon whom service may be made as provided for by article three of the civil practice law and rules…” So, in Matter of Mestecky v City of New York (No. 120), which I previewed here, the question before the Court of Appeals was whether a “reasonable attempt” at personal service under the Charter is the same as what’s required under the CPLR.

In Mestecky, the DOB tried to serve a property owner with notices of violation for doing construction work without building permits by knocking on the door of the rental property, ringing the doorbell, and then nailing the notices to the door when no one answered. DOB also mailed three of the seven notices of violation to the property owner’s home address. The owner challenged the service as insufficient under the Charter, but an ALJ and the Appellate Division, First Department said the one attempt was enough to satisfy due process.

Interpreting the NYC Charter’s service requirement, the Court of Appeals held that the language was pretty clear. It says “a reasonable attempt” at personal service has to be made before nail and mail service can be used. “A reasonable attempt” is singular, not plural, the Court held, so the NYC Council’s intent wasn’t up for debate.

The Court, therefore, rejected the property owner’s argument that the City Charter’s service provision for zoning violations incorporated the CPLR’s reasonable efforts standard before nail and mail service can be used. Under the Charter, only one personal service attempt is necessary. And so, in this case, the City Department of Buildings did enough, and the zoning violations were sustained.

While Mestecky is an interesting case for us procedural nerds (service issues are always exciting), the Court was careful to limit the reach of its decision to NYC zoning violations. So, there won’t be much, if any, impact on service in litigation in the New York courts.

The Court of Appeals’ opinion can be found here.

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