The NY Civil Court, Queens eviction notice of petition was served on a 13-year-old female at the tenant’s apartment. The tenant filed an emergency order to show cause to vacate the warrant of eviction. The case cited by the process server, Choi Yin Chi v. Miller, 63 Misc.3d 354 [Sup Ct Queens Co 2019] does not stand for the proposition that a 13-year-old is a person of suitable age and discretion. The court stressed that it has a great deal of difficulty finding that a 13- year- old is a person of suitable age and discretion upon whom a summons may be served. In that respect, the court noted that the New York Court of Appeals has apparently never addressed the issue of service upon a young teenager. When confronted with a case in which service of process was disputed, the Court of Appeals noted that “no question has been raised concerning the fact that the youngsters, one fourteen and the other fifteen, were of ‘suitable age and discretion’.” The burden is upon the process server and not upon the 13-year-old to show that they are of suitable age and discretion. The facts and arguments presented cannot support a finding that the 13-year-old was of suitable age and discretion. Therefore, the warrant of eviction was vacated, although it had already been executed.
Call or text Buffalo Landlord Attorneys Justin R. Friedman and Robert Friedman at (716) 543-3764 for advice on evictions, leases, rent collection and the proper screening of tenants.
