Matticore Holdings, LLC v. Hawkins

• Decision Date: 25 July 2022
• Docket Number: L & T Index No. 308973/22
• Citation: 76 Misc.3d 511,172 N.Y.S.3d 585
• Parties: MATTICORE HOLDINGS, LLC, Petitioner, v. Andrew HAWKINS & Madeline Cepero aka Marilyn Cepero, Respondents.
• Court: New York Civil Court

76 Misc.3d 511
172 N.Y.S.3d 585

MATTICORE HOLDINGS, LLC, Petitioner,
v.
Andrew HAWKINS & Madeline Cepero aka Marilyn Cepero, Respondents.

L & T Index No. 308973/22

Civil Court, City of New York, Bronx County.

Decided on July 25, 2022

Attorney for Petitioner: Laurence M. Savedoff, P.L.L.C., 3234 White Plains Road, Bronx, New York 10467, (718) 515-0020

Attorneys for Respondent Marilyn Cepero: Stephanie A. Costa, Esq., Bronx Legal Services, 369 East 148th Street, 2nd Floor, Bronx, New York 10455, (718) 928-2894

Diane E. Lutwak, J.

Petitioner's Motion to Vacate ERAP Stay and Respondent Cepero's¹ Cross-Motion to Dismiss, consolidated herein for disposition, are decided as follows.

76 Misc.3d 512

PROCEDURAL HISTORY & FACTUAL BACKGROUND

This holdover eviction proceeding was commenced by Notice of Petition and Petition dated April 6, 2022, predicated upon a "Ninety Day Notice to Quit" dated October 22, 2021 advising Respondents that Petitioner would commence a summary eviction proceeding if they did not move out by January 31, 2022. The Petition alleges, inter alia , that the building is not a multiple dwelling, the apartment is not subject to rent regulation and Respondents filed an "ERAP" (Emergency Rent Assistance Program) application (Petition at ¶¶ 6, 7, 10).

The Petition was filed with the Court on April 7, 2022 and, by "Court Notice" dated April 13, 2022 (NYSCEF Doc # 4), calendared for an initial virtual conference in Intake Part 1 on May 4, 2022. The Court Notice further states: "Please attach this to the petition and notice of petition." The process server's affidavit of service of the Petition,

76 Misc.3d 513

Notice of Petition and Court Notice, sworn to and filed on May 3, 2022 (NYSCEF Doc #5), asserts service on Respondent

172 N.Y.S.3d 587

Cepero as follows: "Attempted to serve Madeline Cepero a/k/a Marilyn Cepero on April 13, 2022, but she refused and told me to do what I had to do, while pointing to the door. I affixed two copies to the front door. Ms. Cepero waited for until I reached my vehicle when I saw Ms. Cepero open the front door and remove both copies that were affixed to the door and rip them up, throwing them in the garbage." Further, the May 3, 2022 affidavit of service asserts that a copy of the papers was mailed by "registered certified mail" to Respondent on April 14, 2022. A Supplemental Affidavit of Service, sworn to by the process server on July 11, 2022 and filed on July 12, 2022 (Exhibit C to Reply Affirmation, NYSCEF Doc # 21), is identical to his original affidavit with the additional statement that a copy of the papers was sent to Respondent by "regular mail", also on April 14, 2022.

Both Petitioner by counsel and Respondent pro se appeared for the May 4, 2022 initial conference. The case was transferred to Part C and adjourned to June 7, 2022. On May 10, 2022 Petitioner's counsel filed a motion to vacate the ERAP stay pursuant to L. 2021, c. 56, Part BB, Subpart A, § 8 as amended by L. 2021, c. 417, Part A, § 4 ("the ERAP Law") and place the case on the trial calendar. In support of that motion Petitioner makes two arguments: first, that the stay imposed by the ERAP Law is an unconstitutional violation of Petitioner's due process rights; second, on the facts and circumstances presented the stay should be lifted because this is a holdover proceeding against occupants of an apartment in a building with less than four units, there is no current lease, Petitioner has advised Respondents that any prior lease will not be renewed and Petitioner does not seek use and occupancy. Petitioner cites to, inter alia , this Court's decision in ( 2986 Briggs LLC v. Evans, 74 Misc. 3d 1224[A], 163 N.Y.S.3d 794 [Civ. Ct. Bx. Co. 2022] ).

Respondent retained counsel who filed opposition to Petitioner's motion and a cross-motion to dismiss for lack of personal jurisdiction. In opposition to Petitioner's motion Respondent argues that (1) the constitutional argument cannot be considered because Petitioner did not serve the New York State Attorney

76 Misc.3d 514

General; (2) even if the constitutional argument is considered, it should be denied because the ERAP stay is not unconstitutional; and (3) Respondent is entitled to the benefit of the statutory stay under the ERAP Law.

Respondent's cross-motion, supported by her own affidavit and her attorney's affirmation, seeks dismissal under CPLR R 3211(a)(8) for lack of personal jurisdiction due to three defects in the service of the Notice of Petition and Petition: (1) under New York State Real Property Actions and Proceedings Law (RPAPL) § 735(1)(a), because the original affidavit of service did not assert that a copy was sent by regular mail after a copy was left on the door; (2) under RPAPL § 735(2)(a), because the affidavit of service was not filed with the court until May 3, 2022, "significantly more than three days after mailing the court papers on April 14, 2022"; and (3) under RPAPL § 733(1), which requires that a holdover notice of petition and petition, "shall be served at least ten and not more than seventeen days before the time at which the petition is noticed to be heard," as the papers were served more than seventeen days before the May 4, 2022 return date. Respondent cites, inter alia , ( Riverside Syndicate, Inc. v. Saltzman, 49 A.D.3d 402, 852 N.Y.S.2d 840 [1st Dep't 2008] ), and ( Berkeley Assocs. Co. v. Di Nolfi, 122 A.D.2d 703, 505 N.Y.S.2d 630 [1st Dep't 1986] ).

In the alternative, Respondent seeks leave to interpose an Answer, and an order

172 N.Y.S.3d 588

deeming her proposed Answer duly served and filed.

In opposition to the cross-motion Petitioner argues that (1) as per the process server's Supplemental Affidavit, he did send copies by both registered certified mail and regular mail on April 14, 2022; (2) the mailings were in addition to personal delivery to Respondent, as described in the process server's affidavit; (3) failure to file an affidavit of service within three days of completion of service pursuant to RPAPL § 735(2) is not a jurisdictional defect but merely a procedural irregularity which can be corrected nunc pro tunc ; and (4) service was not defective under RPAPL § 733(1) because service on "April 13-14, 2022" was "at least ten days before the return date and a mere thirteen business days before the return date."

DISCUSSION

Respondent's cross-motion to dismiss due to defective service will be addressed first, as if it is granted, there will be no need to address Petitioner's motion to vacate the ERAP stay. The starting point in the analysis is the "black-letter law" principle that "where the defendant resists service, it suffices to leave

76 Misc.3d 515

the summons in his general vicinity". ( McDonald v. Ames Supply Co., 22 N.Y.2d 111, 115, 291 N.Y.S.2d 328, 331, 238 N.E.2d 726, 728 [1968] ). See also, e.g., ( Bossuk v. Steinberg, 58 N.Y.2d 916, 460 N.Y.S.2d 509, 447 N.E.2d 56 [1983] ); ( Hall v. Wong, 119 A.D.3d 897, 990 N.Y.S.2d 579 [2nd Dep't 2014] ); ( Austrian Lance & Stewart, PC v. Rockefeller Ctr, Inc., 163 A.D.2d 125, 558 N.Y.S.2d 521 [1st Dep't 1990] ). Here, the process server, in his detailed affidavit, describes Respondent resisting service when he tried to deliver the papers to her in hand on April 13, 2022. Respondent did not dispute these allegations in her affidavit, and merely denied...