239 S. 1st St. LLC v. Ribot, 2007 NY Slip Op 51221(U) (N.Y. Civ. Ct. 6/15/2007), 57782/07.
| Decision Date | 15 June 2007 |
| Docket Number | 57782/07. |
| Parties | 239 SOUTH 1ST STREET LLC, Petitioner, v. RAFAEL RIBOT, JOHN DOE, and JANE DOE, Respondents. |
| Court | New York Civil Court |
The respondent was represented by: Martin S. Needelman, Esq., Susan Barrie, Esq., Of Counsel, Brooklyn Legal Services Corp., A Williamsburg Office, Brooklyn, New York.
Petitioner commenced this nonpayment proceeding by service upon the respondent of a written Three Day Demand, dated January 26, 2007, by conspicuous service on February 1, 2007. Thereafter, on February 21, 2007, the petitioner filed the Notice of Petition and Petition with the clerk of the court and then served copies of same upon the respondent, also by conspicuous service on February 20, 2007.
On February 27, 2007, the respondent appeared and answered by her attorney, raising several defenses to this proceeding, including, inter alia, lack of subject matter jurisdiction for improper service of the rent demand (¶ 1); lack of personal jurisdiction for improper service of the Notice of Petition and Petition (¶ 2); and that "[t]he Notice of Petition and Petition are defective and must be dismissed as the copy of theses pleadings sent to the respondents does not indicate the name or the stamp of the clerk of the court as required by law thereby depriving the court of jurisdiction over this proceeding." (¶ 13)
The case first appeared on the Court's calendar on March 6, 2007 and was thereafter adjourned, on consent, to April 10, 2007 and then to April 11, 2007 at which time the attorney for the respondent moved for an order dismissing this matter on the grounds of lack of jurisdiction. Pursuant to a stipulation that date, the matter was further adjourned to May 8, 2007 — the petitioner to serve opposition papers by April 27, 2007 and respondent to reply by May 7, 2007. On May 8, 2007, the case was adjourned, once again, to June 8, 2007. On June 8, 2007, after a brief off the record discussion with the attorneys for both sides, the Court accepted all papers on the issues for submission.
Does the absence of the signature or stamped facsimile thereof of the name "Jack Baer" on the line above the designation "Clerk of the Civil Court" on the copy of the Notice of Petition and Petition served upon the respondent render the papers null and void, thereby depriving the Court of personal jurisdiction of the respondent?
For the reasons set forth below, it is the opinion of this Court that the absence of the signature or stamped facsimile of the clerk of the court on the copy of a Notice of Petition and Petition served on the respondent, provided the originals were properly filed with the court, does not invalidate said pleadings or deprive the court of personal jurisdiction, if otherwise properly served on the respondent.
The Notice of Motion herein, dated April 3, 2007, was filed with the clerk of the court on April 4, 2007. It contains the attorney's affirmation, a copy of the Notice of Petition and Petition in question and a copy of the respondent's answer to same. There was no affidavit from the respondent attached to said motion. A separate affidavit from the respondent, dated April 3, 2007, and notarized on April 9, 2007, was first mailed to the petitioner's attorney on that day.
The relevant paragraphs of the attorney's affirmation read as follows:
3. The copy of the notice of petition received by the respondent does not bear any indication that it was issued by the court. See Exhibit A. Whereas, on information and belief, the original notice of petition bears the stamped signature of "Jack Baer" across the signature line for the "Clerk of the Civil Court of the City of New York", the copy received by the respondent shows only the signature line itself, without any signature, written or stamped, above, below, or across the line. Indeed, the signature line does not even display the symbol "s/" indicating that the original had been signed. (Emphasis added)
8. Additionally, my client informs me that he was not personally served with the petition, nor was a copy of the petition left at the subject premises, nor did he receive a copy by certified mail. He informs me that h[e] received only 1 copy in the mail and therefore the court lacks personal jurisdiction over respondent. (Emphasis added)
Regarding the issue of the missing clerk's stamp or signature on the copy received by the respondent, each attorney submitted only one lower court case (each from Civil Court, NY County) that specifically addressed this issue in support of their respective positions. Ironically, both parties rely on the interpretation of a single sentence in the Court of Appeals case Matter of Gershel v. Porr, 89 NY2d 327, 653 N.Y.S.2d 82, specifically: "Basic to this statutory procedure is the rule that the papers served must conform in all important respects to the papers filed (Citations omitted)". Id. at 332 (Emphasis added)
Therefore, it is up to this Court to break the stalemate between these two contradictory lower court decisions and the interpretation of Matter of Gershel v. Porr, supra..
Respondent cites the commercial nonpayment case 225 5th LLC v. Fiori Fiori Inc., NYLJ, 2/16/05, p.22, col.3, wherein the respondent argued that the petition was defective because the copy served on it did not bear any indication that it was issued by either a judge or court clerk as there was no stamp or signature of the clerk of the court on it and the index number was hand written, as it is in the case at bar.
In this case, the copy of the notice of petition served on the respondent was not an accurate copy, in that it lacked the signature of the Clerk of the Court. The petitioner's failure to have served respondent with a true, conformed copy of a notice of petition issued by the Clerk of the Court deprives the Court of personal jurisdiction over the respondent. (Citations omitted)
There, the court further found that "a handwritten index number does not provide the tenant with adequate notice that the notice of petition was properly issued."
In response to the respondent's position, petitioner refers to First Avenue Owner's Corp. v. Riverwalk Garage Corp., 6 Misc 3d 439, 784 N.Y.S.2d 844, which, faced with the same factual situation regarding the lack of the clerk of the court's stamp on the notice of petition, reached the opposite conclusion from the court in 225 5th LLC v. Fiori Fiori Inc., supra. In granting the petitioner's motion to dismiss the respondent's affirmative defense which alleged that the notice of petition received by the respondent was defective because it was undated and lacked the stamp of the clerk, the court stated:
RPAPL § 731 (1) and New York City Civil Court Act § 401(c) require that a notice of petition be duly issued by a judge or clerk of the court.1 The notice of petition filed in this action was duly issued by the clerk of the court. Additionally, respondent's claim that the notice of petition it was served with was not dated and lacked the stamp of the clerk of the court does not warrant dismissal of this action. The rule is that the papers served in an action "conform in all important respects to the papers filed." (See Gershel v. Porr, 89 NY2d 327, 653 N.Y.S.2d 82, 675 N.E.2d 836 [1996]). The notice of petition served on respondent conformed in all important respects to the notice of petition filed with the court. First Avenue Owner's Corp. v. Riverwalk Garage Corp., 6 Misc 3d at 444, 784 N.Y.S.2d at 849
This Court agrees with the conclusion reached by the court in First Avenue Owner's Corp. v. Riverwalk Garage Corp., id..2 In citing to Gershel v. Porr, supra, the court properly applied the phrase "in all important respects" by finding that the service upon the respondent of a copy of the notice of petition lacking the stamp or signature of the clerk of the court, but correct in every other manner, "conformed" in all "important" respects.3 Respondent's citing of Fry v Village of Tarrytown, 89 NY2d 719, 658 N.Y.S.2d 205, is distinguishable with regard to this matter. In that case, the petitioner failed to file a signed order to show cause and petition with the clerk of the court after paying the filing fee. However, the Court of Appeals held that because the respondent appeared in the proceeding and litigated its merits without raising this objection the Supreme Court had subject matter jurisdiction. In the instant proceeding, there is no question that the petitioner properly filed the initiatory pleadings with the clerk of the court and that this Court has subject matter jurisdiction. Here, the issue is limited to the conformance of the copy of the pleadings to the originals and whether the omission of the signature or stamp of the clerk of the court and the insertion of the handwritten index number nullifies the otherwise proper pleadings.4
At no time does the respondent challenge the substantive body of the Notice of Petition or the Petition or indicate that they differ in any way from the originals filed with the court, but for those two items mentioned. The respondent does not claim that the Notice of Petition he received was illegible or unintelligible so that he could not ascertain the nature of this proceeding or what was required of him in order to appear and / or answer. The papers contained all the essential and relevant information such as the names of the parties, the index number (albeit hand written), the address of the court where the respondent was to appear and / or answer, as well as the name and address of the petitioner's counsel. Clearly, if the respondent had any doubts about the validity of the papers served upon him, simply because of the blank space above the line for the clerk of the court, there was sufficient information contained therein with...
To continue reading
Request your trial