37 West 72nd Street, Inc. v. Frankel

• Docket Number: Index No. 300420-20
• Decision Date: 20 January 2023
• Citation: 183 N.Y.S.3d 275
• Parties: 37 WEST 72ND STREET, INC., Petitioner, v. Rebecca FRANKEL, John Doe, Jane Doe, Respondents.
• Court: New York Civil Court

183 N.Y.S.3d 275

37 WEST 72ND STREET, INC., Petitioner,

v.Rebecca FRANKEL, John Doe, Jane Doe, Respondents.

Index No. 300420-20

Civil Court, City of New York, New York County.

Decided on January 20, 2023

Borah Goldstein Altschuler Nahins & Goidel (Carla Seals, Esq.), New York, for the petitioner

The Legal Aid Society (Kenson Ng, Esq.), for the respondent-Rebecca Frankel

No appearance — John Doe, Jane Doe

Karen May Bacdayan, J.

PROCEDURAL HISTORY AND BACKGROUND

This is a holdover summary proceeding brought against respondent on the basis of chronic rent delinquency. Petitioner filed the notice of petition and petition on August 6, 2020, at the height of the COVID-19 pandemic in New York City. (NYSCEF Doc No. 1-2.) Rather than assigning a return date, the internal procedure for scheduling holdover proceedings governed by the Chief Clerk's Memorandum 210 ("CCM 210") dated July 30, 2020 and available at https://nycourts.gov/COURTS/nyc/SSUdirectives/CCIWCCM210.pdf, was as follows:

"Landlord & Tenant Holdover cases are generally submitted with a return date selected by the filer/petitioner. Due to the current crisis related to the COVID-19 Pandemic, we are unable to schedule these cases and are uncertain when future court dates will become available.... A notation should be made on the Notice of Petition — Assigned stating ‘DATE TO BE DETERMINED. THE COURT WILL NOTIFY ALL PARTIES OF THE COURT DATE.’ "

The CCM 210 notation was made on the notice of petition herein. (NYSCEF Doc No. 2, notice of petition filed; NYSCEF Doc No. 5, notice of petition — assigned.) Petitioner served the notice of petition and petition by personal service upon respondent pursuant to RPAPL 735, mailed copies of the notice of petition and petition on August 20, 2020, and filed the affidavit of service on August 26, 2020. (NYSCEF Doc No. 7, affidavit of service.) Subsequently, as with all suspended holdover proceedings regardless of whether an affidavit of service had been filed or not, a notice from the court that the proceeding had been scheduled for June 15, 2021 was sent to the parties. According to the Universal Case Management System, available only to court employees and of which the court takes judicial notice,¹ this notice was generated on May 28, 2021, 18 days prior to the scheduled June 15, 2021 appearance ( CPLR 4511 ; NYSCEF Doc No. 16, court notice). On June 15, 2021, the court stayed the proceeding as respondent had filed a hardship declaration and an Emergency Rental Assistance Program ("ERAP") application, both of which occasioned an automatic stay.² (NYSCEF Doc No. 17, COVID-19 hardship declaration; NYSCEF Doc No. 23, respondent's attorney's affirmation.) Eventually, both stays were vacated and the proceeding was restored to the calendar by motion in October 2022. Respondent filed an answer raising a first objection in point of law that "[t]he petition must be dismissed because Petitioner failed to comply with RPAPL § 733 (1). RPAPL § 733 (1) mandates that a holdover petition must be made returnable no less than ten [and not] more than seventeen days after service is completed." (NYSCEF Doc No. 29, verified answer ¶¶ 4-8.)

Now before the court is respondent's motion to dismiss the proceeding based on early-filing of the notice of petition and petition in that the notice of petition and petition were served in August 2020 and the proceeding was first noticed to be heard by the court on June 15, 2021. Respondent's position is that this is a summary proceeding requiring strict compliance with statute and, therefore, prejudice need not be demonstrated. Respondent cites to two leading Appellate Division, First Department cases as support for her arguments that no prejudice needs to be demonstrated, and that strict compliance with statutory prerequisites is required to maintain a summary proceeding. ( Berkeley v. DiNolfi, 122 A.D.2d 703, 505 N.Y.S.2d 630 [1st Dept. 1986] ; Riverside Syndicate, Inc. v. Saltzman , 49 A.D.3d 402, 852 N.Y.S.2d 840 [1st Dept. 2008].)

Petitioner opposes and cross-moves for an order to pay use and occupancy and to dismiss respondent's first objection in point of law, on the basis that RPAPL 733 (1) should not be strictly followed given the unprecedented disruption of justice caused by the COVID-19 pandemic, and the various administrative orders that modified ordinary court procedures. Petitioner argues that "[d]ismissal of [this] proceeding because the petitioner followed the rules imposed by the Court is absurd, unfair and serves no legitimate end of justice." (NYSCEF Doc No. 40, petitioner's attorney's affirmation in opposition ¶ 4.) Petitioner urges that Berkeley and Riverside Syndicate "should not be followed as they clearly do not address the circumstances the courts and the parties faced in 2020 and 2021." (Id. ¶ 30.)

DISCUSSION

Modified Court Procedures

On October 9, 2020, the Chief Administrative Judge issued Administrative Order 231/20, which provided that "[a]ll residential eviction matters, both nonpayment and holdover, may proceed in the normal course , subject to ... individual court scheduling requirements occasioned by health and safety concerns arising from the coronavirus health emergency." (Admin Order of Chief Admin Judge of Cts AO/231/20 ["AO/231/20"], ¶ 1 [b] (emphasis added.) In the accompanying memorandum, the Hon. Lawrence K. Marks explained that "[t]he safety of judges, non-judicial personnel, and court visitors remains the paramount concern in all court operations. Given the ongoing need to restrict foot traffic in courthouses for reasons of health and safety, we anticipate that the scheduling, hearing and issuance of decisions in eviction matters will often require far lengthier time periods than anticipated in statutes and prevalent under pre-COVID conditions." Mem of Chief Admin Judge of Cts, available at https://www.nycourts.gov/whatsnew/pdf/EvictionsMemo-10-09-20.pdf.

Concededly, AO/231/20 was issued after petitioner served the notice of petition and petition. However, the preceding administrative orders did not advise landlords either to serve or not to serve a notice of petition and petition comprising the CCM 210 language. Indeed, Administrative Order 127/20, issued on June 18, 2020 provided that "... eviction proceedings filed after March 16, 2020 shall, upon the filing of a petition (if no answer is filed thereafter) or the filing of an answer, be suspended until further order." Administrative Order 161/20 further provided that "[e]viction proceedings commenced after March 16, 2020 shall, upon the filing of a petition (if no answer is filed thereafter) or the filing of an answer, be suspended until further order (emphasis added)."³ Because petitioner filed their petition on August 6, 2020, and was on notice that the proceeding would be "suspended" until further notice. (Id. ; NYSCEF Doc No. 1, petition; NYSCEF Doc No. 2, notice of petition filed.) Moreover, nothing requires a petitioner to serve a notice of petition and petition within a specific time-frame after filing same with the court.

The modified court procedures set forth in various administrative orders were well within the Chief Administrative Judge's power to control the daily operations of the court and did not intrude upon the legislature's authority to regulate proceedings in law. However, like CCM 210, none of the relevant administrative orders altered nor excused statutory requirements. Unlike the legislature and the governor, the Chief Clerk and the Chief Administrative Law Judge do not have the power to enact, suspend, or modify statutes during a state of disaster in order to manage the emergency.⁴

Statutory Requirements for Commencing a Holdover Proceeding

RPAPL 735 (1) states:

"Service of the notice of petition and petition shall be made by personally delivering them to the respondent; or by delivering to and leaving personally with a person of suitable age and discretion who resides or is employed at the property sought to be recovered, a copy of the notice of petition and petition, if upon reasonable application admittance can be obtained and such person found who will receive it; or if admittance cannot be obtained and such person found, by affixing a copy of the notice and petition upon a conspicuous part of the property sought to be recovered or placing a copy under the entrance door of such premises; and in addition, within one day after such delivering to such suitable person or such affixing or placement, by mailing to the respondent both by registered or certified mail and by regular first class mail[.]"

In holdover proceedings, RPAPL 733 (1) requires that "the notice of petition and petition shall be served at least ten and not more than seventeen days before the time at which the petition is noticed to be heard." When service is made by personal in-hand delivery, service is completed immediately upon personal delivery. RPAPL 735 (2) (a).

The Parties’ Arguments

In support of her argument that the petition must be dismissed for failure to comply with RPAPL 733 (1), respondent cites to 208 W 20th Street LLC v. Blanchard , 76 Misc. 3d 505, 173 N.Y.S.3d 439 [Civ. Ct., New York County 2022] and Matticore Holdings, LLC v. Hawkins , 76 Misc. 3d 511, 172 N.Y.S.3d 585 [Civ. Ct., Bronx County 2002]. (NYSCEF Doc No. 34, respondent's attorney's affirmation ¶¶ 10-11.) In Blanchard , petitioner completed service of the notice of petition and petition by filing the affidavit of service on NYSCEF more than three days after mailing, and fewer than 10 days before the first court appearance assigned by the court. Citing to Berkeley and Riverside Syndicate, Inc. , this court held that while respondent was not prejudiced by the short-filing of the affidavit of service, prejudice is not part of the calculus in the First Department when deciding a motion to dismiss based on a failure to strictly adhere to service requirements. ( Blanchard , 76 Misc.3d at 507-510, 173 N.Y.S.3d 439.)

Though the Berkeley court found that the...