Martin v. Sandoval

• Decision Date: 02 February 2015
• Docket Number: No. SP–07–65.,SP–07–65.
• Citation: 9 N.Y.S.3d 594 (Table)
• Parties: Ken MARTIN, Jr., Petitioner–Landlord, v. Byron SANDOVAL and Miriam Acevedo 104 Spring Street, Apt. No.2 Peekskill, New York 10566, Respondent–Tenants.
• Court: New York City Court

9 N.Y.S.3d 594 (Table)

Ken MARTIN, Jr., Petitioner–Landlord

v.Byron SANDOVAL and Miriam Acevedo 104 Spring Street, Apt. No.2 Peekskill, New York 10566, Respondent–Tenants.

No. SP–07–65.

City Court, City of Peekskill.

Feb. 2, 2015.

Matthew Mazzamurrow, Esq., Peekskill, for Respondent.

Ken Martin, Jr. Maryknoll, pro se.

Opinion

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 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

I. 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 (N.Y. 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 A.D.2d 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, 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 A.D.2d 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 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 A.D.3d 402, 852 N.Y.S.2d 840 [1st Dept.2008], citing Berkley Assoc. Co. v. Di Nolfi, 122 A.D.2d 703, 505 N.Y.S.2d 630 [1st Dept.1986], lv. dismissed 69 N.Y.2d 804, 513 N.Y.S.2d 386, 505 N.E.2d 951 [1987] ; MSG Pomp Corp. v. Doe, 185 A.D.2d 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, N.Y. 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 A.D.2d at 401, 478 N.Y.S.2d 722.

Since summary proceedings are now given a sort of de minimis variations analysis (See, Zot v. Watson, supra, Judge Kraus granted petitioner's motion to deem the affidavit timely filed, concluding that the short filing of the affidavit of service was a de minimis violation of RPAPL § 735(2) and not fatal), the Court holds that even though the affidavit of service for the notice of petition and petition in the instant case was filed with the Court five (5) days after its service instead of three (3) as required by RPAPL § 735(2) this constitutes a de minimis violation of RPAPL § 735(2) and the Court is not divested of subject matter jurisdiction.

Filing proof of service does not relate to the jurisdiction of the Court which is acquired by the service of the summons or, in this case, by the service of the petition and notice of petition. See, Helfand v. Cohen, 110 A.D.2d 751, 487 N.Y.S.2d 836 (2d Dept.1985). (“The purpose of requiring the filing of proof of service pertains to the time within which the defendant must answer and does not relate to the jurisdiction acquired by the court upon service of the summons.”) See, Reporter Co., Inc. v. Tomicki, 60 A.D.2d 947, 401 N.Y.S.2d 322 (3d Dept.1978) ; 86 N.Y.Jur.2d, Process and Papers, § 130 (“failure to file, or delay in filing, proof of service is merely a procedural irregularity and not jurisdictional and may be corrected nunc pro tunc by the court.”)

The Respondent's application to vacate the warrant of eviction pursuant to RPAPL § 749(3), which permits a Court to vacate a warrant of eviction for “good cause” shown prior to the execution of said warrant, is addressed to the sound discretion of the Court. See New York City Housing Authority v. Torres, 61 A.D.2d 681, 403 N.Y.S.2d 527 (1st Dept.1978). It has been held that a Court retains jurisdiction to vacate a warrant of eviction even after it has been executed. See, Harvey 1390 LLC v. Bodenheim, 96 A.D.3d 664, 948 N.Y.S.2d 32 (1st Dept.2012) (Court held that trial court had power to vacate warrant of eviction prior to its execution for “good cause shown,” and, in the appropriate circumstances, even after the warrant has been executed); Brusco v. Braun, 84 N.Y.2d 674, 682, 621 N.Y.S.2d 291, 645 N.E.2d 724, 727 (1994) (same). In the case at bar, the Respondent was personally served with the notice of petition and petition on January 17, 2007; he personally appeared at the hearing in this matter on February 6, 2007, but he erroneously thought that the security deposit held by the Landlord would satisfy his debt.³ Accordingly, the Respondent has not demonstrated “good cause” warranting a vacatur of the warrant of eviction in this matter. Further, the Respondent makes no claim that the warrant of eviction was obtained by fraud (See, 7402 Bay Parkway Associates v. Diamond, 116 Misc.2d 403, 458 N.Y.S.2d 122 (N.Y. City Civil Ct.1982) (Court held that where a warrant of eviction is the product of calculated fraud it is of no force and effect). The Respondent now claims almost eight (8) years after the hearing that “I do not read or write or understand English and I could not afford a lawyer at the time of this case.” See, Resp. Affd., ¶ 7. Interestingly, the Respondent does not state that he raised any of these issues at his hearing. The Court finds these claims unpersuasive and insufficient to warrant vacatur of the warrant of eviction pursuant to RPAPL § 749(3).

II. Vacating the Judgment and Warrant Pursuant to CPLR 5015(a)

The Respondent also moves to vacate the money judgment and warrant in this matter pursuant to CPLR § 5015(a). Although the Respondent does not specify what section of CPLR § 5015(a) he relies upon, the Court presumes that he relies upon CPLR § 5015(a)(4) (lack of jurisdiction...