Martin v. Byron Sandoval & Miriam Acevedo 104 Spring St., SP-07-65

• Decision Date: 02 February 2015
• Docket Number: SP-07-65
• Citation: 2015 NY Slip Op 50099 (U)
• Court: New York Court of Appeals Court of Appeals
• Parties: Ken Martin, Jr., Petitioner-Landlord, v. Byron Sandoval AND Miriam Acevedo 104 Spring Street, Apt. Peekskill, New York 10566, Respondent-Tenants.

2015 NY Slip Op 50099(U)

Ken Martin, Jr., Petitioner-Landlord,
v.
Byron Sandoval AND Miriam Acevedo 104 Spring Street,
Apt. Peekskill, New York 10566, Respondent-Tenants.

SP-07-65

Peekskill City Court

February 2, 2015

Matthew Mazzamurrow, Esq.

Attorney for Respondent

1011 Park Street, Suite 6

Peekskill, New York 10566

(914) 736-3074

Ken Martin, Jr.

Petitioner/Landlord

P.O. Box 107

Maryknoll, New York 10545

Reginald J. Johnson, J.

The Respondent-Tenant, Byron Sandoval (hereinafter "the Respondent"), moves by Order to Show Cause seeking a stay of the issuance of a judgment and warrant pursuant to CPLR 2004 and restoration of the matter to the calendar so that the Respondent may be heard; or, in the alternative, seeking an order vacating the warrant of eviction and the judgment in favor of the Landlord pursuant to RPAPL §§749(3) and CPLR 5015(a), dismissal of the petition, and for such other relief as seems just to the Court.

For the reasons that follow, the motion is denied in its entirety.

Procedural History

On January 16, 2007, the Landlord commenced a non-payment proceeding against the

Page 2

Respondents by filing a notice of petition and petition with the Court. ¹ On January 17, 2007, the notice of petition and petition were personally served on the Respondents. On January 22, 2007, the affidavit of service was filed with the Court. On January 23, 2007, the Landlord and Respondent appeared in the Landlord/Tenant Part of this Court for a first appearance in this matter. The Court scheduled a hearing for February 6, 2007 at 9:30 a.m. before Judge William Maher. At the conclusion of the hearing, the Court rendered a judgment in favor of the Landlord for $2,385 plus $315.00 in costs, together with a warrant of eviction with no stay. There was no further activity in this matter until Respondent Sandoval filed the within Order to Show Cause on January 6, 2015. On January 30, 2015, the parties were directed to appear before this Court for a hearing on the Order to Show Cause. The Respondent appeared but the Landlord did not, after which the motion was marked fully submitted.

Discussion

Vacating the Warrant of Eviction Pursuant to RPAPL §749(3)

The Respondent argues, pursuant to RPAPL §749(3)² that the warrant of eviction should vacated because the affidavit of service was filed with the Court five (5) days from the date of its service instead of three (3) days as required by Real Property Actions and Proceedings Law ("RPAPL") §735(2)(a). That section states, in pertinent part,

The notice of petition, or order to show cause, and petition together with proof of service thereof shall be filed with the court or clerk thereof within three days after; personal delivery to respondent, when service has been made by that means, and such service shall be complete immediately upon such personal delivery; or mailing to respondent, when service is made by the alternatives above provided, and such service shall be complete upon the filing of proof of service.

It is well settled that a landlord's failure to comply with RPAPL §735(2)(a) by failing to file the requisite proof of service of a notice of petition and petition within three (3) days after service of same is not a jurisdictional defect. See, Siedlecki v. Doscher, 33 Misc 3d 18, 933 N.Y.S.2d 203 (App. Term, 2d, 11th & 13th Jud. Dists. 2011); Djokic v. Perez, 22 Misc 3d, 930, 872 N.Y.S.2d 263 (NY City Civil Ct. 2008); Friedlander v. Ramos, 3 Misc 3d 33, 779 N.Y.S.2d 327 (App. Term, 2d Dept. 2004); Zot Inc. v. Watson, N.Y.L.J., 7/30/08, p. 29, col. 1.; Lanz v. Lifrieri, 104 AD2d 400, 478 N.Y.S.2d 722 (2d Dept. 1984).

The vast majority of courts and commentators are of the view that filing a late affidavit of service in a summary proceeding can be excused or granted nunc pro tunc relief. See, Friedlander v. Ramos,

Page 3

supra; Zot v. Watson, supra; Mangano v. Ikinko, 958 N.Y.S.2d 308 (Ossining Just. Ct. 2010); Djokic v. Perez, 872 N.Y.S.2d at 268, quoting Ward v. Kaufman, 120 AD2d 929, 502 N.Y.S.2d 883 (4th Dept.)("The failure to file a timely affidavit of service is not a jurisdictional defect, but merely a procedural irregularity which can be cured by an order nunc pro tunc."); Finkelstein and Lucas, Landlord and Tenant Practice in New York, §15:350 [2014]; Fame Equities & Mgmt. Co. v. Malcolm, N.Y.L.J., 10/28/96, p. 27, col. 4 (App. Term, 1st Dept.)("failure to file proof of service is not a jurisdictional defect."); Ardo Corp. v. Bierly, N.Y.L.J., 3/21/94, p. 29, col. 6 (App. Term, 1st Dept.)("the court properly permitted nunc pro tunc filing of the Notice of Petition and proof of service since failure to comply with the filing requirement is not a jurisdictional defect."); Tasman v. Esposito, N.Y.L.J., 11/21/90, p. 27, col. 1 (App. Term, 9th and 10th Jud. Dists.)("The fact that the notice of petition and notice of petition and proof of service may not have been filed within three days after service as required is not a fatal jurisdictional defect Indeed a court is empowered to afford nunc pro tunc relief from its late filing ."); 14 Carmody-Wait 2d §90:152 [2014].

However, since a summary proceeding is a special proceeding mandating strict compliance with its procedural requirements in order to give the court jurisdiction (See, Riverside Syndicate, Inc. v. Saltzman, 49 AD3d 402 [1st Dept. 2008], citing Berkley Assoc. Co. v. Di Nolfi, 122 AD2d 703, 505 N.Y.S.2d 630 [1st Dept. 1986], lv. dismissed 69 NY2d 804, 513 N.Y.S.2d 386, 505 N.E.2d 951 [1987]; MSG Pomp Corp. v. Doe, 185 AD2d 798, 586 N.Y.S.2d 965 [1992]), it would appear that noncompliance with the procedural requirement in RPAPL 735(2) that an affidavit of service be filed with the court within three (3) days after service of the notice of petition and petition mandates dismissal of the proceeding for lack of subject matter jurisdiction. See, Wendt and Benjamin, Service of Process under Section 735 of the RPAPL, NY State Bar Journal, April 1988, p. 38. Notwithstanding this kind of noncompliance, the Second Department has said [w]e adopt the reasoning of a recent trend of cases which treat summary proceedings the same way as any other type of civil case and which refuse to consider de minimis variations from strict compliance as jurisdictional defects. Lanz v. Lifieri, 104 AD2d at 401.

Since summary proceedings are now given a sort of de minimis variations analysis (See, Zot v. Watson, supra, Judge Kraus granted...