Department of Housing Preservation and Development v. Arick

• Decision Date: 07 May 1986
• Parties: DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, Petitioner, v. Lee ARICK, Hisho BB Corp, and Bruce Hissom, Respondents. DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, Petitioner, v. John CHANEY, Chan Prop. Inc., Respondents. -L
• Court: New York City Court

Page 489

503 N.Y.S.2d 489

131 Misc.2d 950

DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, Petitioner, v. Lee ARICK, Hisho BB Corp, and Bruce Hissom, Respondents.

DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, Petitioner, v. John CHANEY, Chan Prop. Inc., Respondents.

Civil Court of the City of New York New York County, Part 18-L.

May 7, 1986.

Bruce Kramer (Lawrence P. Cartelli, Ronni Chasin Roth, of counsel), New York City, for Dept. of Housing Preservation and Development.

Miriam M. Breier, New York City, for respondents Lee Arick, Hisho BB Corp., and Bruce Hissom.

Lubell & Koven (Laurence Reinleib, of counsel), New York City, for respondents John Chaney, Chan Prop. Inc.

LEWIS R. FRIEDMAN, Housing Judge.

These cases, consolidated for decision, present several recurring issues concerning the enforcement of court orders obtained by petitioner, the Department of Housing Preservation and Development ("DHPD"). In each case an order under Housing Maintenance Code ("HMC") § D26-53.01 directed the respondents to provide heat and hot water as required by Article 17 of the HMC. After the orders were served on respondents, violations for a lack of heat and hot water were placed at each of the premises. Civil and criminal contempt proceedings were commenced by DHPD to remedy the violations of the injunctions and to punish the violators.

The respondents in Arick seek dismissal of the contempt proceeding. The respondents in Chaney seek to vacate the default contempt judgments which were entered. [The respondent Chaney served the entire 30 day jail sentence 9 months before this motion was made.] All respondents allege improper service of the orders to show cause which commenced the contempt proceedings.

In both cases the orders to show cause provided, inter alia, for service pursuant to CPLR 308 and 311 and New York City Civil Court Act § 110(m). The affidavits of service in Arick show that "Jane" Torres was served as a "general agent" of the corporation and as a "person of suitable age and discretion" on behalf of the individual respondents; additionally, copies were mailed to the addresses registered with DHPD under Admin. Code § D26-41.03. In Chaney service was made by "mail and nail" at the home and business addresses registered with DHPD.

Respondents raise several important issues, not explored in prior cases, concerning the service of process in civil and criminal contempt proceedings. The Court of Appeals, in Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 582-3, 466 N.Y.S.2d "Civil contempt has as its aim the vindication of a private right of a party to litigation and any penalty imposed upon the contemnor is designed to compensate the injured private party for the loss of or interference with that right (State of New York v. Unique Ideas, 44 NY2d 345 [405 N.Y.S.2d 656, 376 N.E.2d 1301] ). Criminal contempt, on the other hand, involves vindication of an offense against public justice and is utilized to protect the dignity of the judicial system and to compel respect for its mandates (King v. Barnes, 113 NY 476 )."

279, 453 N.E.2d 508 (1983), recently restated the distinction between civil and criminal contempt.

Since different standards of service apply to civil and criminal contempt, they will be discussed separately.

SERVICE OF ORDERS TO SHOW CAUSE TO COMMENCE CIVIL CONTEMPT CASES

The starting ground for analyzing service requirements is the statute involved. Judiciary Law § 761 provides: "An application to punish for contempt in a civil proceeding shall be served upon the accused, unless service upon the attorney for the accused be ordered by the court or judge." The cases interpreting that section uniformly hold that personal service is not required. That is, the civil contempt proceeding is treated as a motion in the case and any form of service otherwise authorized, including ordinary mail, has been upheld. See, e.g., Quantum Heating Services Inc. v. Austern, 100 A.D.2d 843, 474 N.Y.S.2d 81 (2d Dept.1984); Long Island Trust Co. v. Rosenberg, 82 A.D.2d 591, 598, 442 N.Y.S.2d 563 (2d Dept.1981).

The First Department has recently reaffirmed the long line of cases which hold that service of an order to show cause on an attorney for a party to an action is sufficient to initiate a civil contempt proceeding. Lu v. Betancourt, 116 A.D.2d 492, 496 N.Y.S.2d 754; see S.I. Holding Corp v. Harris, N.Y.L.J. Feb. 14, 1986, p. 13, col. 1 (App.T. 1st Dept.); Billingsley v. Better Business Bureau of New York City, Inc., 232 App.Div. 227, 249 N.Y.S. 584 (1st Dept.1931); cf. New York Higher Education Assistance Corp v. Cooper, 65 A.D.2d 906, 410 N.Y.S.2d 687 (2d Dept.1978); Long Island Trust Co. v. Rosenberg, supra; compare Federal Deposit Insurance Corp. v. Richman, 98 A.D.2d 790, 792, 470 N.Y.S.2d 19 (2d Dept 1983) (contemnor was not a party to an underlying action).

The Second Department has noted that the 1977 amendments to the Judiciary Law use the term "personal service" in sections 772 and 773, which govern punishment for contempts committed by violating enforcement proceedings under the CPLR and DRL, but not in section 761, which governs the service of the order to show cause to commence a civil contempt proceeding. New York Higher Education Assistance Corp v. Cooper, supra.

The cases lead to the conclusion that the order to show cause may be validly served on the alleged contemnor, either personally if not a party to the action or by mail if a party, or on counsel who has appeared in the action.

SERVICE OF ORDERS TO SHOW CAUSE TO COMMENCE CRIMINAL CONTEMPT CASES

The rule oft stated in this state is that service of the order to show cause to commence a criminal contempt proceeding must be personally served on the accused. This rule exists despite the statutory requirement as to service. Judiciary Law § 751(1) provides merely that "the party charged must be notified of the accusation, and have a reasonable time to make a defense." Yet the Court of Appeals has long seemed to require personal service on the accused. "Personal service in such cases is indispensable and this is based 'on the well settled principle of the common law, that no person shall be condemned unheard.' " Billingsley v. Better Business Bureau of New York City, Inc., supra All of the subsequent cases in the First and Second Departments appear to use the same formulation--"personal service". See e.g., Long Island Trust Co. v. Rosenberg, supra; Lu v. Betancourt, supra : S.I. Holding Corp. v. Harris, supra; James v. Powell, 32 A.D.2d 517, 298 N.Y.S.2d 840 (1st Dept.1969); People v. Balt, 34 A.D.2d 932, 312 N.Y.S.2d 587 (1st Dept.1970); Matter of Murray v. Commissioner of Social Services, 98 A.D.2d 93, 98, 469 N.Y.S.2d 747 (1st Dept.1983); State University of New York v. Denton, 35 A.D.2d 176, 179-80, 316 N.Y.S.2d 297 (4th Dept.1970); Board of Education v. Pisa, 54 A.D.2d 821 (4th Dept.1976). The Third and Fourth Departments, at least in some cases, do not appear to require "personal service", but analyze the adequacy of the notice in the particular case. Compare City School District of the City of Schenectady v. Schenectady Federation of Teachers, 49 A.D.2d 395, 398, 375 N.Y.S.2d 179 (3d Dept.1975); Orchard Park Central School District v. Orchard Park Teachers Assoc., 50 A.D.2d 462, 469, 378 N.Y.S.2d 511 (4th Dept.1976), with Board of Education of the City School Dist of the City of Buffalo v. Pisa, 54 A.D.2d 821, 388 N.Y.S.2d 733 (4th Dept.1976). In any event, none of the reported contempt decisions defines "personal service".

quoting from Pitt v. Davison, 37 N.Y. 235 (1867).

All of the respondents before the court argue that the term "personal service" in contempt cases means "personal delivery". That is, they contend that the appellate courts have insisted on "in hand service" of the order to show cause in order to commence a criminal contempt case. The argument, notwithstanding the number of times it is repeated, is incorre in light of the statutes, the actual holdings of the cases and the public policy involved.

There is a statutory definition of "personal service". CPLR 308 explains how "personal service" upon a natural person is made. That section provides for 5 methods of "personal service"--"personal delivery", "substituted service", service on a designated agent, "mail and nail" and the varied forms of service under CPLR 308(5).

The cases interpreting CPLR 308 uniformly hold that "personal service" is more inclusive than "personal delivery". See e.g., Rodgers v. Rodgers, 32 A.D.2d 558, 300 N.Y.S.2d 275 (2d Dept.1969); Wakerman Leather Co., Inc. v. Irvin B. Foster Sportswear Co., Inc., 27 A.D.2d 767, 277 N.Y.S.2d 56 (3rd Dept.1967); Matter of Weill v. Erickson, 49 A.D.2d 895, 897, 373 N.Y.S.2d 370 (2d Dept.1975), aff'd 37 N.Y.2d 851, 378 N.Y.S.2d 39 (1975). "Personal delivery" is used in CPLR 308(1) to mean "in hand delivery". The same use is intended in CPLR 317 where defaults can be vacated in certain cases where there has not been "personal delivery". Cf. Wakerman Leather Co., Inc. v. Irvin B. Foster Sportswear Co., Inc., supra; see Eugene DiLorenzo, Inc. v. A.C. Dutton Lumber Co., Inc., 67 N.Y.2d 138, 501 N.Y.S.2d 8, 492 N.E.2d 116 (March 27, 1986). Similarly RPAPL 771(5)(a) distinguishes between "personal delivery" and other forms of service for the commencement of proceedings for the appointment of an administrator. Compare former § D26-50.9 of the N.Y.C. Administrative Code which required service "in person" to commence certain actions. Housing and Development Administration v. Hickman, 68 Misc.2d 701, 702-3, 327 N.Y.S.2d 875 (Sup.Ct.N.Y.Co.1971).

The cases hold that when no form of service is specified only "personal delivery" is intended. See e.g. Twentieth Century-Fox Film Corp v. Dupper, 33 A.D.2d 682, 305 N.Y.S.2d 918 (1st Dept.1969); Stevens v. State of New York, 277 App.Div. 418, 420, 100 N.Y.S.2d 826 (3rd Dept.1950); cf. Rathbun v. Acker, 18 Barb. 393. But that principle should not apply when ...