Puteoli Realty Corp. v. Mr. D's Fontana Di Trevi Restaurant, Inc.

• Decision Date: 13 June 1978
• Parties: PUTEOLI REALTY CORP. v. MR. D'S FONTANA DI TREVI RESTAURANT, INC.
• Court: New York District Court

Page 118

407 N.Y.S.2d 118

95 Misc.2d 108

PUTEOLI REALTY CORP. v. MR. D'S FONTANA DI TREVI RESTAURANT, INC.

District Court, Suffolk County.

June 13, 1978.

Charles F. Alario, Brooklyn, for petitioner; Robert W. Nishman, Jericho, of counsel.

Braun, Pachman, Oshrin & Block, P. C., Commack, for respondent; Alan D. Oshrin, Commack, of counsel.

ALEXANDER W. KRAMER, Judge.

This proceeding has been instituted pursuant to the Real Property Actions & Proceedings Law. The petition herein was dated and verified on May 23, 1978; the notice of petition was dated May 23, 1978. The chronological history of this case is on file with the court.

Service of a copy of the petition and notice of the petition was allegedly made upon the Secretary of State on May 26, 1978, in accordance with section 306 of the Business Corporation Law the respondent herein being a domestic corporation.

The initial thrust of respondent's motion is for dismissal predicated upon the lack of jurisdiction. The Court will direct its attention, therefore, to that phase of the motion.

This is a proceeding brought pursuant to Article 7 of the Real Property Actions and Proceedings Law. (hereinafter referred to as RPAPL.) Said Article 7 replaced Article 83 of the Civil Practice Act: it became effective on September 1, 1963. It was designed to streamline the general, broad field of summary proceedings.

Summary proceedings are what the name implies. They are statutory devices by which jurisdiction may be acquired quickly; by which resolutions of issues can be arrived at expediently; and by means of which in the normal course of events long delays may be circumvented. In order to implement the provisions thereof, the provisions of the statute must be followed.

Section 735 of the RPAPL initially provided that:

"Service of the notice of petition and petition shall be made in the same manner as personal service of a summons in an action."

In apparent reliance upon that phraseology the petitioner herein elected to effect service on the respondent, a domestic corporation, by serving the Secretary of State. The attorney contends that such service constitutes valid service. He relies on Section 306(b) of the Business Corporation Law, contending that service was complete when copies of the process herein were delivered and left with a person authorized by the Secretary of State to receive such service.

Furthermore, reliance for the proposition that jurisdiction rested in this court is placed upon a finding in a summary proceeding matter which was determined by one of our sister courts, viz. the District Court of Nassau County. Leven v. Browne's Business School, 71 Misc.2d 842, 337 N.Y.S.2d 307.

That was an uncontested proceeding. Copies of the notice and petition had been served by delivery to an authorized member of the staff of the Secretary of State in Albany. The Court was aware of the impact which followed the amendment of Section 735 of the RPAPL, as per the Session Laws of 1965. As so amended the statute provided, inter alia, for

"Service of the notice of petition and petition shall be made by personally delivering them to the respondent," etc.

The Leven opinion demonstrates that the Court struggled with the question of proper notice. It observed at page 843, 337 N.Y.S.2d at page 309:

"The analogy is easily drawn between delivery to an individual and delivery to a corporation through an officer. Prompt notice is usually given to the tenant. Delivery to the Secretary of State brings a little hesitation because of the problem of time lapse between delivery to the Secretary and receipt of the copy he mails to the corporation. Ultimately the summons is mailed rather than delivered to the corporation's office."

The Court then went on to conclude at page 844, 337 N.Y.S.2d at page 309:

"Any problem that may arise because of failure or delay in receiving notice because of the intervening problems in the mailing or receipt by the addressee of the letter from the Secretary of State would not affect jurisdiction. Such matters would be properly before the court on a motion to vacate the default judgment."

The rationale thus expressed hardly seems the proper balm for a wound, the infliction of which should not have been tolerated in the first place.

The question of jurisdiction is rooted in concepts of fair play and adequacy of notice in short due process. That distinguished jurist, Oliver Wendell Holmes, observed:

"Whatever disagreement there may be as to the scope of the phrase 'due process of law,' there can be no doubt that it embraces the fundamental conception of a fair trial, with opportunity to be heard." Frank v. Mangum, 237 U.S. 309, 347, 35 S.Ct. 582, 595, 59 L.Ed. 969.

And Mr. Justice Robert H. Jackson observed:

"Procedural fairness, if not all that originally was meant by due process of law, is at least what it most uncompromisingly requires. Procedural due process is more elemental and less flexible than substantive due process. It yields less to the times, varies less with conditions, and defers much less to legislative judgment. Insofar as it is technical law, it must be a specialized responsibility within the competence of the judiciary on which they do not bend before political branches of the Government, as they should on matters of policy which comprise substantive law." Shaugnessy v. Mezei, 345 U.S. 206, 224, 73 S.Ct. 625, 635, 97 L.Ed. 956.

Were this an action at law; were this a proceeding for the recovery of money only, jurisdiction could only have been obtained in accordance with the provisions of the Uniform District Court Act read in conjunction with the Business Corporation Law.

Where service is effected by...