Landlord Prevails After Eviction-Paper Delivery Debate

A state housing court judge ruled that an Edgewood eviction case can move forward after finding that leaving legal papers on an apartment’s doorknob — even if that apartment door is in a common hallway accessible to lots of different people, and not just the tenant whom the landlord is trying to kick out — counts as legally valid service in a civil action.

State Superior Court Judge Walter Spader, Jr. handed down that decision Tuesday at the end of a hearing in housing court on the third floor of the state courthouse at 121 Elm St.

The case involves a Mandy Management affiliate’s bid to evict a family of tenants from their second-floor apartment in a 44-unit building on Chapel Street near Winthrop Avenue for allegedly not paying their $1,300 monthly rent last October.

Tuesday’s hearing before Judge Spader, however, was not on the merits of the underlying nonpayment claim. Instead, the debate centered on a motion to dismiss that the tenant and her legal aid attorney, Amy Eppler-Epstein, filed earlier this year to try to have the case thrown out entirely for allegedly violating state law governing how a tenant must be notified that their landlord is trying to evict them.

Legal Aid: Common Hallway, Not Proper "Abode Service"

As Eppler-Epstein and the tenant explained in a Jan. 20 motion to dismiss and before the housing court judge on Tuesday, they believed the court lacked jurisdiction to hear this eviction case because the landlord did not properly deliver the relevant legal papers to the tenant’s family.

Both the notice to quit and the summons and complaint in this case were ​“left on the apartment door, leaning against the doorknob, in a common hallway that [is] used and accessed by at least six tenants on that floor alone,” Eppler-Epstein wrote in that motion to dismiss.

“There is plenty of room to slide papers under the door of the apartment, but that was not done here,” the tenant confirmed in a Jan. 10 affidavit included in the motion to dismiss. ​“Also, people were home in my apartment on the day that the summons and complaint was served, no one reported ever hearing anyone knock on the door or try to serve them papers in person; we did not discover the papers until my husband and I came home from work that day, and saw the papers leaning against the doorknob and the door.”

During their time before the judge on Tuesday, Eppler-Epstein and her client emphasized just how commonly accessible this hallway is.

The tenant said she lives on the second-floor of the five-story apartment building. ​“Anyone can literally walk into the building,” she said, and everyone has access to all of the hallways. ​“There’s multiple people in and out of the building all the time.”

In response to questions from Eppler-Epstein, the tenant also said that she has had multiple packages disappear from her front door — even though the delivery service let her know that those packages had been dropped off.

And she told the judge that the legal papers in this eviction case were left by her doorknob.

This is such a problem, Eppler-Epstein argued the motion to dismiss and in court Tuesday, because state law requires a landlord to properly serve a tenant in an eviction case in order for that case to move forward — and not doing so is grounds to have a case dismissed. As she said before the judge: ​“service has to be made either in hand or by abode service.”

In her Jan. 20 motion to dismiss, Eppler-Epstein pointed to state law Sec. 47a-23(c), which provides that a notice to quit ​“shall be delivered to each lessee or occupant or left at his place of residence … by a proper officer.” She then pointed to state law Sec. 52 – 57, which states that ​“process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.”

That was not done in this case, she argued. She wrote that a process server normally makes ​“abode service” by sliding papers under the door of the abode, if practicable. 

“Here, there was clearly a failure to make service on the abode by sliding process under the defendant’s apartment door,” Eppler-Epstein wrote. ​“Nor was the notice hand delivered, although, at least in the case of the notice to quit, the tenant alleges that there were people home all day that day.” She made that same point on Tuesday: that leaving eviction papers by a doorknob in a ​“common hallway” that ​“multiple people have full access to … does not constitute proper abode service.”

Therefore, she concluded in her written filing, ​“Because compliance with the notice to quit requirement is a jurisdictional necessity to a proper summary process action, a plaintiff’s failure to satisfy the prescribed notice requirements renders the court without subject matter jurisdiction to hear the case.”

Landlord's Lawyer: What About Perrone?

In an objection to the motion to dismiss filed on Monday and in her pitch to the court on Tuesday, landlord-hired attorney Eliana Schachter pushed back on Eppler-Epstein’s claims that this was not a legally valid delivery of legal papers.

She emphasized that, per a 2006 state court decision called Fine Homebuilders v. Perrone, “[t]he relevant inquiry is whether process was left at the usual place of abode of the defendant in such a place and manner that is reasonably probable that the defendant will receive notice of the action against her.”

That question of whether or not it was ​“reasonably probable” that the defendant would find the legal papers is paramount to whether or not the service was valid, Schachter argued. And the precedent of Fine Homebuilders v. Perrone shows that the way that service was done in this eviction case met that standard.

“Exclusive control is a lot wider than the defendant seems to define it,” she said on Tuesday.

In the Perrone case, Schachter wrote in her objection filing, ​“the court held that abode service was properly made when the marshal affixed the process to the main entryway to the property — a gate more [than] 200 feet from the home of the defendants. … In that case, the court reasoned that because the front door was inaccessible, the marshal affixed the process to the main entryway to the property, and the defendants received notice of the action, service of process effected by the marshal was reasonably likely to achieve personal notice.”

Meanwhile, in this eviction case currently before the court, Schachter continued, ​“the marshal affixed the notice to quit and summons and complaint to the defendant’s own door handle, in between the door handle and the door post, where the occupants were most likely to come across it. Had he slid it under the door, the papers could have slid out of sight. The writ summons and complaint would most likely have been stepped on, crumpled, and possibly gone unnoticed by the occupants or thrown away as unfamiliar trash on the floor. There is no alleged history in this building of papers being stolen or tampered with. Sliding the papers under the front door would have borne the same risk, if not a higher risk, as affixing them to the front door. Under these circumstances, it was reasonably probable that the occupants of this apartment will receive notice when said notice is affixed to the door handle, in between the door handle and the door post, as abode service was effectuated in this case. Therefore, the court has subject matter jurisdiction.”

So, Schachter continued on Tuesday before the judge, ​“there is no perfect way of abode service.” And, because ​“Homebuilders v. Perrone blew open the scope of abode service,” the service in this case qualifies as valid.

Eppler-Epstein disagreed, arguing in response on Tuesday that the method of leaving papers by a doorknob in a commonly accessible hallway where packages have previously gone missing does not make it ​“reasonably probable” that the tenant would receive the necessary service.

Judge: "Service Was Valid In This Case"

After hearing both arguments on Tuesday, Judge Spader sided with Schacter, found that it was ​“reasonably probable” that the tenant would find the notice left by the marshal on her doorknob — and therefore allowed the nonpayment of rent eviction case to continue.

He said that, during his time on the bench and as a lawyer before he became a judge, he ​“was surprised by how often this issue does come up” — that is, legal arguments over whether or not the service of court papers was legitimate.

While the service of the papers in this case may not have been ​“perfect,” he conceded, ​“the concept of abode service is very broad,” per the ruling in the Perrone case. He also said that the court prefers to hear cases on the merits when possible.

And so, he said, ​“I do think service was valid in this case” and he denied the defense’s motion to dismiss.

See below for other recent stories about New Haven eviction cases:

• Sunset Ridge Becomes Eviction Central
• Eviction OK’d After Restaurant Shutters
• Eviction OK’d After ​“Lapse,” Rent Debate
• Mandy Leads Pack In Eviction Filings
• Eviction ​“Answers” Reveal Renters’ Struggles
• Eviction Suit Caps Tenant’s Tough Run
• Investor Skips Hello, Starts Evictions
• Eviction Deal Drops $1 Ruling Appeal
• Judge’s $1 Award Tests Eviction Rule
• Court Case Q: Which ​“Nuisances” Merit Eviction?
• ​“Or” Evictions OK’d
• Fair Rent: Dog’ll Cost You $150
• Rent Trumps Repairs In Elliot Street Eviction
• Though Sympathetic, Judge Blocks Eviction
• Family Feuds Fill Eviction Court
• Rent Help Winds Down. What’s Next?
• Eviction Withdrawn After Rent Catch-up
• Hill Landlord Prevails In ​“Lapse” Eviction
• Landlord Thwarted 2nd Time On Eviction
• Church Evicting Parishioner
• Hard-Luck Tenant Hustles To Stay Put
• Eviction Of Hospitalized Tenant, 74, Upheld
• Judge Pauses Eviction Amid Rent-Relief Qs
• Amid Rise In ​“Lapse-of-Time” Evictions, Tenant Wins 3‑Month Stay
• Leaky Ceiling, Rent Dispute Spark Eviction Case