Dixon v. Cnty. of Albany

• Decision Date: 25 March 2021
• Docket Number: 530619
• Citation: 145 N.Y.S.3d 639,192 A.D.3d 1428
• Parties: In the Matter of Clifton M. DIXON, Respondent, v. COUNTY OF ALBANY et al., Appellants, et al., Respondent.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 1428

145 N.Y.S.3d 639

In the Matter of Clifton M. DIXON, Respondent,

v.COUNTY OF ALBANY et al., Appellants, et al., Respondent.

530619

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

Calendar Date: February 9, 2021

Decided and Entered: March 25, 2021

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J. Appeal from a judgment of the Supreme Court (Hartman, J.), entered October 23, 2019 in Albany County, which, among other things, partially granted petitioner's application, in a proceeding pursuant to CPLR article 78, to prohibit the enforcement of a warrant of eviction until after an affidavit of service was filed.

On August 26, 2019, Albany City Court (Reilly, J.) issued a warrant of eviction to remove petitioner from 439 Manning Boulevard in the City of Albany, effective September 9, 2019. On August 29, 2019, a deputy sheriff with respondent Albany County Sheriff's Department served the warrant of eviction and notice of eviction upon petitioner via the "nail and mail" method of service set forth in RPAPL 749(2). Petitioner was removed from the premises on September 13, 2019. On the same day, petitioner filed an order to show cause seeking to restrain the Sheriff's Department from removing him from the premises, alleging that it did not file proof of service of the notice of eviction with the court within three days of service, as required by RPAPL 735(2), and, thus, service was not complete and the requisite 14–day waiting period before executing the warrant of eviction had not begun to run.¹ Pending a hearing on the matter, petitioner's possession of the premises was restored. Respondents opposed the petition alleging that proof of service of the warrant is not required as no further court action is needed. Supreme Court found that filing proof of service triggered the 14–day waiting period before execution of the warrant. Thus, Supreme Court granted the petition to the extent that the execution of the warrant was prohibited until 14 days after the Sheriff's Department timely filed an affidavit of service of the notice of eviction. Respondent County of Albany and the Sheriff's Department (hereinafter collectively referred to respondents) appeal.

"As a general principle, courts are precluded from considering questions which, although once live, have become moot by passage of time or change in circumstances" ( City of New York v. Maul, 14 N.Y.3d 499, 507, 903 N.Y.S.2d 304, 929 N.E.2d 366 [2010] [internal quotation marks and citation omitted]). As petitioner was evicted on a different warrant of eviction and vacated the premises during the pendency of this appeal, this appeal is moot (see Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 811, 766 N.Y.S.2d 654, 798 N.E.2d 1047 [2003], cert denied 540 U.S. 1017, 124 S.Ct. 570, 157 L.Ed.2d 430 [2003] ). However, we find that the exception to the mootness doctrine exists because the issue presented is substantial, likely to recur and involves a situation capable of evading review, as tenants will likely be evicted before appeals can be heard (see Matter of M.B., 6 N.Y.3d 437, 447, 813 N.Y.S.2d 349, 846 N.E.2d 794 [2006] ; Matter of Mental Hygiene Legal Serv. v. Delaney, 176 A.D.3d 24, 30, 109 N.Y.S.3d 469 [2019], lv granted 35 N.Y.3d 912, 2020 WL 5182995 [2020] ; Matter of Police Benevolent Assn. of N.Y., Inc. v. State of New York, 161 A.D.3d 1430, 1431, 77 N.Y.S.3d 724 [2018] ).²

Respondents contend that proper service of the warrant of eviction does not require the filing of an affidavit of service. "When presented with a question of statutory interpretation, a court's primary consideration is to ascertain and give effect to the intention of the Legislature. We have long held that the statutory text is the clearest indicator of legislative intent" ( Matter of Walsh v. New York State Comptroller, 34 N.Y.3d 520, 524, 122 N.Y.S.3d 209, 144 N.E.3d 953 [2019] [internal quotation marks and citations omitted]). "Statutes are to be construed according to the ordinary meaning of their words and where the language of a statute is clear and unambiguous, courts must give effect to its plain meaning" ( Matter of Carmel Academy v. New York State Educ. Dept., 169 A.D.3d 1287, 1288, 94 N.Y.S.3d 715 [2019] [internal quotation marks, brackets, ellipsis and citations omitted], lv denied 35 N.Y.3d 901, 2020 WL 1581646 [2020] ).

"RPAPL article 7 sets forth the jurisdictional and procedural requirements for summary proceedings to recover possession of real property" ( Matter of Brusco v. Braun, 84 N.Y.2d 674, 679, 621 N.Y.S.2d 291, 645 N.E.2d 724 [1994] ). RPAPL 749 governs the issuance and execution of a warrant of eviction. "Upon rendering a final judgment for [the owner], the court shall issue a warrant directed to the sheriff of the county ... in which the property, or a portion thereof, is situated, ... describing the property, stating the earliest date upon which execution may occur pursuant to the order of the court, and commanding the officer to remove all persons named in the proceeding" ( RPAPL 749[1] ). "The officer to whom the warrant is directed and delivered shall give at least [14] days' notice, in writing and in the manner prescribed in [RPAPL article 7] for the service of a notice of petition, to the person or persons to be evicted or dispossessed and shall execute the warrant on a business day between the hours of sunrise and sunset" ( RPAPL 749[2][a] ). Manner of service is defined as "the way or means by which service of process was made" (Black's Law Dictionary [11th ed 2019], manner of service). The legislative history shows that the intent of the statute was to permit service not only by personal service, but also by substituted service, upon a person of suitable age and discretion and by nail and mail (see Sponsor's Mem, Bill Jacket, L 1964, ch 303). As respondents argue, absent from the statutory provision is any requirement for filing proof of service of the warrant; while acknowledging that it might result in "elevating form over substance," Supreme Court felt constrained to reach this result based upon RPAPL 735. That statute governs the service and filing of the initial petition, which has distinct and different purposes.

Significantly, the issuance of a warrant is the court's last act in a summary proceeding, as denoted by the phrase, "Upon rendering a final judgment for [the owner], the court shall issue a warrant" ( RPAPL 749[1] ). The execution of the warrant terminates the lease (see Weichert v. O'Neill, 245 A.D.2d 1121, 1122, 667 N.Y.S.2d 527 [1997] ). Likewise, the execution of the warrant terminates the summary proceeding and the jurisdiction of the court (see Super Nova 330 LLC v. Gazes, 693 F.3d 138, 142 [2012] ; Whitmarsh v. Farnell, 298 N.Y. 336, 344, 83 N.E.2d 543 [1949] ; Matter of Walker v. Ribotsky, 275 App.Div. 112, 114, 88 N.Y.S.2d 207 [1949] ).³ Because the court no longer has jurisdiction, the filing of the affidavit of service is superfluous. This stands in stark contrast to the purpose of the affidavit of service at the commencement of the summary proceeding, where it suffices as proof that the party was properly served pursuant to law, as proper service is required to bring a respondent within the jurisdiction of the court (see 6–8 W. 107 Assn. v. Nuey, 135 Misc.2d 104, 107, 515 N.Y.S.2d 185 [1987] ; Jackson v. New York City Hous. Auth., 88 Misc.2d 121, 123, 387 N.Y.S.2d 38 [1976] ).

Additionally, the filing of an affidavit of service at the commencement of a summary proceeding starts the time for the respondent to file an answer and interpose a defense, and is utilized in calculating the time for a default in appearance. In a nonpayment summary proceeding, a respondent must answer within 10 days from the date of service and, upon his or her failure to do so, the court shall render judgment in favor of the owner (see RPAPL 732[3] ). These reasons are nonexistent in the context of the service of the warrant of eviction where a final judgment has been rendered and the proceeding has been finalized. As such, we find that filing the affidavit of service at the conclusion of service of a warrant of eviction is not required, and the 14–day notice begins the day following the date of service, posting or mailing, whichever is later (see Regan v. Tally Ho Trucking Co., 103 Misc.2d 269, 273, 425 N.Y.S.2d 725 [1980] ).

Garry, P.J., and Colangelo, J., concur.

Pritzker, J. (dissenting).

Although we agree with the majority that the appeal is moot, we part ways because it is our opinion that the question before the Court does not fit within the exception to the mootness doctrine; thus, we respectfully dissent. Because the eviction has already taken place, in our view, respondents County of Albany and Albany County Sheriff's Department (hereinafter collectively referred to as respondents) are now simply seeking an advisory opinion on a purely procedural issue that has only a minor impact,⁴ which, in their own words, is the "determination on the applicability of RPAPL 735(2)(b) in the context of service of eviction warrants under RPAPL 749(2)(a)."

Of course, if a matter is moot, this Court lacks jurisdiction to entertain the case unless the exception to the doctrine applies,⁵ permitting us to review matters because they (1) typically evade review, (2) are likely to recur and, importantly, (3) involve issues that are novel and substantial (see Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 810–811, 766 N.Y.S.2d 654, 798 N.E.2d 1047 [2003], cert denied 540 U.S. 1017, 124 S.Ct. 570, 157 L.Ed.2d 430 [2003] ; Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 713–715, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ; Matter of Correction Officers Benevolent Assn., Inc. v. Poole, 188 A.D.3d 1525, 1529, 137 N.Y.S.3d 167 [2020] ; Owner Operator Ind. Drivers Assn., Inc. v. Karas, 188 A.D.3d...