Czajka v. Dellehunt

• Decision Date: 19 February 2015
• Citation: 125 A.D.3d 1177,2015 N.Y. Slip Op. 01514,5 N.Y.S.3d 318
• Parties: In the Matter of Paul CZAJKA, as District Attorney of Columbia County, Respondent–Appellant, v. David A. DELLEHUNT, as Town Justice of the Town of Kinderhook and Village Justice of the Village of Kinderhook, Appellant–Respondent, et al., Respondent.
• Court: New York Supreme Court — Appellate Division

125 A.D.3d 1177

5 N.Y.S.3d 318

2015 N.Y. Slip Op. 01514

In the Matter of Paul CZAJKA, as District Attorney of Columbia County, Respondent–Appellant

v.David A. DELLEHUNT, as Town Justice of the Town of Kinderhook and Village Justice of the Village of Kinderhook, Appellant–Respondent, et al., Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Feb. 19, 2015.

Cooper Erving & Savage, LLP, Albany (David C. Rowley of counsel), for appellant-respondent.

Paul Czajka, District Attorney, Hudson, pro se, and Powers & Santola, LLP, Albany (Michael J. Hutter of counsel), for respondent-appellant.

Before: GARRY, J.P., EGAN JR., LYNCH and CLARK, JJ.

Opinion

GARRY, J.P.

Cross appeals from a judgment of the Supreme Court (Dowd, J.), entered August 12, 2013 in Columbia County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted a motion by respondent David A. Dellehunt to vacate a judgment entered against him and dismissed the petition.

Petitioner is the District Attorney of Columbia County, and respondent David A. Dellehunt (hereinafter respondent) is the Town Justice of the Town of Kinderhook and the Village Justice of the Village of Kinderhook. In June 2012, an Assistant District Attorney asked respondent to provide petitioner's office with a copy of the electronic recording of proceedings held in Kinderhook Village Court on June 4, 2012. Respondent promptly denied this request, explaining that the procedure for obtaining a transcript was to request that the Village Court forward the recording to a designated transcriptionist. Subsequently, an Assistant District Attorney made a written request for respondent to transmit a recording of proceedings held on October 2, 2012 in Kinderhook Town Court to a transcriptionist; in this instance, there was no request for a copy of the recording. Respondent requested that petitioner identify which of the 88 matters heard on that date he wished to have transcribed, and petitioner advised that he was seeking transcriptions of all cases. The Clerk of the Kinderhook Town and Village Courts then allegedly began reviewing the recording to identify which cases could be transcribed in compliance with the Criminal Procedure Law.

In late December 2012, by order to show cause, petitioner commenced this combined CPLR article 78 proceeding in the nature of mandamus to compel and declaratory judgment action against respondent in his capacity as Town Justice. The petition sought an order directing respondent to transmit a recording of Town Court proceedings on October 2, 2012 to a transcriptionist, and to furnish petitioner with copies of such recordings and of “Town Court” proceedings on June 4, 2012.¹ The petition also sought a declaration that respondent is not precluded by law from providing petitioner's office with copies of recordings of Town Court proceedings. Supreme Court (Doyle, J.) signed petitioner's order to show cause on Friday, December 21, 2012, directing service to be made by fax and overnight mail by 4:00 p.m. on the following Monday, December 24, 2012, upon respondent in his capacity as Town Justice, the Clerk of the Town Court, and the attorney for the Town of Kinderhook. Opposing papers were required to be filed and faxed to Supreme Court by 4:00 p.m. on Thursday, December 26, 2012.

The record contains no proof of service. However, respondent acknowledges that the order to show cause and petition were received by fax at the Town Court, with a cover sheet addressed to respondent and the Clerk, at about 3:14 p.m. on December 21, 2012. At about 3:27 p.m., a fax was received at the Village Court, likewise directed to respondent and the Clerk. These papers—an order to show cause and petition—differed from those that had been received at the Town Court in that the handwritten word “Amended” had been added to the documents' titles and the handwritten phrase “as Village Justice” had been added to respondent's designation in the captions. Respondent alleges that separate express mail packages containing the original and amended documents were received at the Town Court on December 26, 2012 and an unspecified date, and at the Village Court on December 23 and 26, 2012.

Respondent requested an adjournment to permit him to obtain representation and prepare a response, and a representative of petitioner's office advised Supreme Court in writing that petitioner consented to an adjournment.² The court denied this request and, at approximately 5:00 p.m. on the return date of December 26, 2012, issued a written decision granting the petition and directing respondent to transmit a recording of the October 2, 2012 Town Court proceedings to a transcriptionist, and to provide petitioner with copies of recordings of Town Court proceedings on June 4, 2012 and October 2, 2012.

In January 2013, respondent moved by order to show cause to, among other things, vacate the judgment, dismiss the combined proceeding and action in its entirety, and impose sanctions upon petitioner. Supreme Court (Devine, J.) signed the order to show cause and granted a temporary restraining order enjoining petitioner from enforcing the judgment. In February 2013, Supreme Court (Dowd, J.) granted respondent's motion, vacated the judgment and dismissed the combined action and proceeding based upon lack of personal jurisdiction. Petitioner and respondent cross-appeal from this judgment.

We must briefly note that during the course of the proceedings, petitioner received a transcript of the October 2012 Town Court proceeding from a transcriptionist. A matter becomes moot when “a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy” (Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach, 98 N.Y.2d 165, 172, 746 N.Y.S.2d 429, 774 N.E.2d 193 [2002] ; accord Matter of Kowalczyk v. Town of Amsterdam Zoning Bd. of Appeals, 95 A.D.3d 1475, 1477, 944 N.Y.S.2d 660 [2012] ). Here, actual controversies remain as to petitioner's requests for recordings of the October 2012 and June 2012 proceedings, and as to respondent's request for sanctions. Further, petitioner alleges that the transcript he received is incomplete and does not fully satisfy his request. Thus, the cross appeals are not moot, as “the rights of the parties will be directly affected by [their] determination” (Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ).

We find no merit in petitioner's challenge to the manner in which Supreme Court (Dowd, J.) was assigned by respondent Unified Court System (hereinafter UCS)³ to hear and determine respondent's motion. The transfer of an action or proceeding, where necessary due to recusals or other issues, is governed by court rules (see 22 NYCRR 202.3 [c][5] ). Upon review, we find nothing to demonstrate that the assignment here was improperly made, no indication that either the assignment or the court's subsequent determination of the motion was affected in any manner or degree by UCS's status as an intervenor, and no suggestion of unfairness or bias (compare Mokay v. Mokay, 111 A.D.3d 1175, 1178, 976 N.Y.S.2d 274 [2013] ; Douglas v. Douglas,

281 A.D.2d 709, 710–711, 722 N.Y.S.2d 87 [2001] ).

Next, petitioner argues that Supreme Court erred in dismissing the petition for lack of personal jurisdiction. In so doing, the court treated the amended order to show cause and amended petition as the operative documents, and found that they were not served in strict compliance with the directions in the order to show cause, as there was no fax service of the amended documents upon the Town Court and—in view of the absence of proof of service and the late arrival of some of the express mail parcels—no showing that they were timely served by mail. Accordingly, the court concluded that service was defective.

On appeal, for the first time, petitioner claims that Supreme Court erred in basing its determination upon the amended petition and amended order to show cause rather than the original documents, arguing that the amended documents are “nullit[ies].” Petitioner states in his brief that after the original order to show cause and petition had been signed and filed, he served “what purported to be an amended petition” that had been altered without court authorization to add the phrase “as Village Justice” to respondent's designation in the caption. Petitioner states that “[t]his was done in the apparent belief that such capacity was necessary to get full relief.”⁴ Petitioner argues that the alteration had the effect of adding a party—that is, respondent in his capacity as Village Justice—and that, as he did not obtain court leave to add a party (see CPLR 401 ), the amended petition is a ity. Thus, upon this appeal, petitioner now contends that the original petition is the operative document, and that Supreme Court erred in basing its decision upon the amended documents—despite the fact that petitioner had previously failed to advise the court or the other parties of the unauthorized amendments and, thus, had held out the altered order to show cause and petition as the operative documents throughout the course of those prior proceedings.⁵ Now, upon this appeal, arguing that he complied with the service directions in the original unaltered documents, petitioner contends that the combined action and proceeding should not have been dismissed.

We agree with petitioner that the amended petition was rendered a ity when it was altered to add a new party without obtaining court leave as required by CPLR 401 (see Matter of Barrett v. Dutchess County Legislature, 38 A.D.3d 651, 653, 831 N.Y.S.2d 540 [2007] ; Matter of Board of Educ. of Fla. Union Free School Dist. v. DePace, 301 A.D.2d 521, 522, 753 N.Y.S.2d 381 [2003], lv. denied 99 N.Y.2d 511, 760 N.Y.S.2d 102, 790 N.E.2d 276 [2003] ; Matter of Aries Striping v. Hurley, 202 A.D.2d 578, 578, 610 N.Y.S.2d 821 [1994] ). We do not,...