People v. Causeway Const. Co., Inc.

• Decision Date: 23 February 1995
• Citation: 164 Misc.2d 393,625 N.Y.S.2d 856
• Parties: The PEOPLE of the State of New York v. CAUSEWAY CONSTRUCTION CO., INC., Defendant.
• Court: New York City Court

Page 856

625 N.Y.S.2d 856

164 Misc.2d 393

The PEOPLE of the State of New York v. CAUSEWAY CONSTRUCTION CO., INC., Defendant.

Criminal Court of the City of New York,

Bronx County.

Feb. 23, 1995.

[164 Misc.2d 394] Paul A. Crotty, Corp. [164 Misc.2d 395] Counsel of the City of New York and Julie M. Lubin, Asst. Corp. Counsel, New York City, for the People.

Ferrari, Rosenthal & Matusiak by James J. Matusiak, Manhasset, for defendant.

IRVING ROSEN, Judge.

On April 12, 1990, an inspector of the New York City Department of Transportation, Division of Highways, wrote and issued universal summonses for three sites ("outside" specific addresses in Bronx County) citing Causeway Construction Company for "unsafe road conditions", in violation of Administrative Code of the City of New York § 19-105. On April 16, 1990, the same highway inspector returned to the same three sites, plus one other, wrote, and issued, four new universal summonses for the same physical condition, citing, instead, Ad Code § 19-157, i.e., street opening without permit. Each offense charged is an unclassified misdemeanor.

In each instance, this corporate defendant was identified by reference to Department of Parks issued permits and to street markings. There is no indication in the court file of where, or even if, these permits were exhibited at the respective sites, but the defendant, in the reply, annexes photocopies of the permits as evidence of his intent to raise a meritorious defense. See CPL § 440.10(1)(f) and 440.20(1).

The first set of three summonses gave June 8, 1990 as a return date in Criminal Court and the second set of four summonses gave June 15, 1990 as the return date, again in Criminal Court.

The seven cases were heard on the respective dates and adjourned to a common date of July 20, 1990, with only one court file indicating that the adjournment was upon "consent" (docket # 90X726613W) and only those returned on June 8th further indicating, as reason for the continuance: "for attorney." Those returnable on June 15th have no markings at all on the court file worksheet, only a date and the presiding jurist's initials.

On July 20, 1990, all of the court files have common markings, i.e., "Corporate default; $2,000; 9-14 to pay." The marking is not in the same handwriting as the endorsement, but it was clearly endorsed by the then presiding judge.

One of the seven dockets has annexed to it two carbon copies of form letters signed by the clerk of the Summons Part addressed to the corporate defendant at the same address given throughout the proceeding. The letters relate, in sum and substance, that on July 20, 1990 a judgement of conviction for the charges on each of the enumerated dockets was entered by the court and that fines totaling $14,000 were imposed on the dockets. The letter dated September 2, 1990 indicated that payment was due on or before September 14, 1990. The second letter, marked "Final Notice" (dated September 17, 1990) was otherwise identical except for the payment due by date, which was given as October 19, 1990. The notice indicates that failure to pay would result in reference to the prosecuting agency for collection.

The Criminal Court case was not given a future date but, instead, the case file indicates that the judgement was referred to the Law Department of the City of New York, commonly known as Corporation Counsel for collection, and that the fine was no longer subject to collection by the court.

On October 31, 1994 a motion was made on behalf of the corporate defendant in Supreme Court, Civil Term, in Queens County. That motion resulted in a stay of execution of the sheriff's lien, by the Honorable Joseph Lane, with a future date in March of 1995. This court will deem that stay as a direction to this court to determine the substantive issues raised in the instant motion.

The court has certain discretion in its review of a post-judgement motion such as this and in the interest of justice will consider the motion. CPL § 440.10(3)(c), second paragraph.

The court's reasoning for considering the issue at all is the possibility that the entry of a judgement of conviction in this case may

have been in violation of the defendant's right to the constitutional safeguards of notice, an opportunity to be heard, the right to the presumption of innocence and the right to call witnesses on its own behalf.

MOTION TO VACATE JUDGMENT: CPL § 440.10(1)(a)

The instant motion is drafted as a motion to set aside judgement pursuant to CPL § 440.10. The grounds given for the motion are the failure of proof of service alleging that this court failed to obtain in personam jurisdiction over the defendant.

The Corporation Counsel opposes such relief and annexes, as exhibits to their affirmation in opposition, photocopies of documents purported to be affidavits of service. They also apparently are relying, to some extent, upon the two notices, sent to the defendant's address post-judgement, by the clerk of the Summons Part and, where applicable, on the notice sent by the Corporation Counsel, also post-judgement, to the defendant in advance of any action towards collection. While there is little doubt that the corporate defendant received some notice of an action, reliance on the post-judgement notices sent by the non-judicial staff of the court does not suffice to confer jurisdiction.

The defendant further seeks an order terminating the sheriff's execution against property. This second branch of defendant's motion is denied. This court is not empowered to modify a duly issued order of a court of superior jurisdiction, notwithstanding CPLR § 5015, and notes that the matter is actually pending in such forum.

The address given by the inspector on both the universal summonses and the misdemeanor complaints as the corporate defendant's address appears to be the same address as appears on the permits issued in early 1990 and is the same address as appears on the notices sent by the court clerk in September of 1990, as well as being the same address listed on the documents purported to be the original affidavits of service. The court takes that address to be the actual address for this corporation.

SUBJECT MATTER JURISDICTION

The offenses with which this defendant is charged are each misdemeanors. Ad Code §§ 19-105 and 19-157; Penal Law § 55.10(2)(c). This court is therefore empowered to hear it. CPL §§ 1.20(24); 10.10(3)(b) and 10.30(1)(b). Before the court may conduct any business other than preliminary matters, it must be satisfied that the accusatory instrument states a crime, and that the defendant is subject to the court's jurisdiction. In this case, neither side has contested this court's assumption of authority, nor, upon review, does it appear that the action should have been filed in any other forum.

IN PERSONAM JURISDICTION

Where the defendant is a natural person, the case law has repeatedly held that a limited appearance to contest service is not available in the criminal courts (see, People v. New York Paving, 155 Misc.2d 934, 591 N.Y.S.2d 318). Even where a named and present person is asserting a defense of "improper party," the issue is not subject to a statutorily permissible dismissal until after the prosecutor has presented at trial, see, People v. MacFarlane Co., 130 Misc.2d 70, 494 N.Y.S.2d 826; People v. Baxter, 148 Misc.2d 1009, 562 N.Y.S.2d 354. (The repeal of CPL § 170.75 did away with preliminary hearings in 1978 for misdemeanor cases.)

It is equally understood that where the defendant is a corporation, the defendant may only appear by counsel. CPL § 600.20. The attendance of a corporation as defendant may be secured by service of a summons or by an appearance ticket (each term is defined in the CPL).

The propriety of any court's action is based upon the acquisition of both subject matter and personal jurisdiction, without both of these, any action beyond those tending to assert jurisdiction (e.g., warrants of arrest, appearance tickets, summons) is a nullity. It is the aspect of in personam jurisdiction that defendant contests.

ACQUISITION OF JURISDICTION BY SERVICE

These cases were initiated by the Department of Transportation, Division of Were this a court of civil jurisdiction, the matter would be set over for a "traverse" hearing; the criminal courts do not adhere to the practice of conducting "traverse" hearings, and the matter is being determined upon the submissions of the attorneys, including the items annexed as if these documents were exhibits which had been offered as exhibits in evidence.

                Highways, by the service of an instrument called a "universal summons," an instrument not defined within the CPL, upon the corporate defendant by personal delivery to an individual, known as Suzy Mai, at defendant's place of business.   The corporation's president, in his affidavit in support of the affirmation in reply, asserts that Ms. Mai, was a person acknowledged to have been (until VERY recently) an employee, but he contests the server's assertion in the affidavit of service that Ms. Mai was ever a person duly "authorized ... to receive service of process."   See, CPL § 600.10(1);  BCL § 306;  CPLR § 311
                

CPL § 440.30 provides that the court may determine the issue on papers, without a hearing, if the papers allege a ground constituting a legal basis for the motion. This court has no alternative except to address the defendant's assertion that the People's failure to have obtained in personam jurisdiction deprived it of rights of a constitutional dimension.

FINDINGS

The affidavit of service filed by the Corporation Counsel is entitled "Certificate of Service of Universal Summons." While the court is not bound by the assertions of either party, it is uncontested that the "process" served in this case was a paper known as a "universal summons".

This instrument is not one of the three methods authorized by the CPL for service upon corporate defendants. The only authorized...