Servs. for the Underserved v. Mohammed

• Docket Number: L&T Index No. 300364-2020
• Decision Date: 01 June 2023
• Citation: 2023 NY Slip Op 50536 (U)
• Parties: Services for the Underserved, Inc., a/k/a S:US, Petitioner, v. "John" Mohammed, Respondents.
• Court: New York Civil Court

2023 NY Slip Op 50536(U)

Services for the Underserved, Inc., a/k/a S:US, Petitioner,
v.
"John" Mohammed, Respondents.

L&T Index No. 300364-2020

Civil Court of The City of New York, Bronx County

June 1, 2023

Unpublished Opinion

Petitioner's counsel: Novick Edelstein Pomerantz, PC

Respondent's counsel: Mobilization for Justice, Inc.

Shorab Ibrahim, J.

RECITATION, AS REQUIRED BY CPLR 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION BY THE RESPONDENT TO DISMISS THE PROCEEDING: NYSCEF Documents 12 (Notice of Motion), 13 (Attorney Affirmation in Support), 14 through 25 (Respondent's Exhibits), 26 (Affidavit in Support), 27 (Memorandum of Law in Support) and 30 (Affidavit in Opposition), 31 (Attorney Affirmation in Opposition), 32 through 46 (Petitioner's Exhibits), and 47 (Attorney Affirmation in Reply).

UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:

BACKGROUND AND PROCEDURAL POSTURE

Services for the Underserved, Inc, a/k/a S:US, the petitioner in this proceeding (petitioner), alleges that "John Mohammed," the respondent in this proceeding (respondent), is either a licensee of the deceased tenant of record or a squatter. (see Notice to Vacate at NYSCEF Doc. 17). Although commenced by petition filed September 16, 2020, (see NYSCEF Doc. 1), the matter was delayed by pandemic-era stays. Once the court began resuming normal operation, the matter was set for a virtual "intake" appearance in November 2021, when it appears the respondent informed the court there was a pending ERAP application. Consequently, the matter was placed on the court's ERAP administrative calendar, which is nothing more than a holding pen for cases until there is a determination on the ERAP application. ^[1] Respondent's counsel filed a notice of appearance on April 18, 2022.

In December 2022, petitioner moved to restore the matter to the calendar. The affidavit in support of that motion notes both that respondent is not entitled to ERAP benefits as a squatter or licensee and that the ERAP application was never actually submitted. (see NYSCEF Doc. 8 at par. 5, 8). That motion was granted by order dated January 17, 2023. (see NYSCEF Doc. 11). Respondent filed an answer on the same day which asserts, inter alia, that the petition incorrectly states that the premises are exempt from rent stabilization and that service of the petition and notice of petition was complete 411 days prior to the initial return date, running afoul of RPAPL § 733(1), requiring service be complete between 10 and 17 days prior to return date. (see answer at NYSCEF Doc. 10).

Respondent now moves for dismissal pursuant CPLR § 3211(a)(7) based on the alleged noncompliance with RPAPL § 741(4) [requiring that a petition state the premise's regulatory status] and pursuant to CPLR § 3211(a)(8) [lack of personal jurisdiction] based on alleged noncompliance with RPAPL § 733(1). Respondent also alleges that petitioner knew his name prior to commencing this case and impermissibly used a pseudonym to identify him in contravention of CPLR § 1024.

In its opposition, petitioner first argues that the petition and service of it, including filing, complies with the relevant directives in effect at the time it commenced this proceeding. Those directives, according to petitioner, allowed for service of notice of petitions with return dates "To Be Determined" by the court. Petitioner also argues that this type of jurisdictional objection is waived if not timely raised and points out that the answer raising the defense was filed nine months after respondent appeared in this case by his attorney filing a notice of appearance. The delay, petitioner argues, is unacceptable considering that the ERAP application by respondent was never filed.

Petitioner further alleges that the petition correctly states that the premises are not subject to rent-stabilization because as stated in the petition, "the housing accommodation is owned, operated, leased or rented pursuant to governmental funding by an institution operated exclusively for charitable or educational purpose(s) on a non-profit basis" and "because there is no Landlord/Tenant relationship between the Landlord and the Occupant."

Finally, petitioner disputes that it had any prior knowledge of movant's true name and points out that respondent has not produced any independent proof of such prior knowledge.

In reply, respondent argues that petitioner concedes the subject premises are subject to rent stabilization, and dismissal is required, especially where petitioner has not moved to amend the petition. Furthermore, respondent argues that the jurisdictional defense was not waived because the answer was filed the same day the ERAP stay was vacated. Respondent also argues that the CPLR § 3211(e) waiver provision has a summary eviction proceeding exception.

DISCUSSION

Pursuant to RPAPL § 733(1), in a holdover proceeding, the notice of petition and petition must be served at least 10 days and not more than 17 days before the time at which the petition is noticed to be heard. And, pursuant to RPAPL § 735(2), service of the notice of petition and petition, when effected by conspicuous place service, is not complete until proof of service is filed with the court. (see 37 West 72nd Street, Inc. v. Frankel, 78 Misc.3d 637, 639, 183 N.Y.S.3d 275 [Civ. Ct., Bronx County 2023]; Bronx 2120 Crotona Ave. L.P. v. Gonzalez, 75 Misc.3d 753, 754, 168 N.Y.S.3d 674 [Civ. Ct., Bronx County 2022]).

If non-compliance with § 733(1) is timely raised, courts in the First Department dismiss proceedings, citing to Riverside Syndicate, Inc. v. Saltzman, (49 A.D.3d 402, 852 N.Y.S.2d 840 [1st Dept. 2008]). (see e.g. Bronx 2120 Crotona Ave. L.P. v. Gonzalez, supra; Matticore Holdings, LLC v. Hawkins, 76 Misc.3d 511, 172 N.Y.S.3d 585 [Civ. Ct., Bronx County 2022]; 208 W 20th Street LLC v. Blanchard, 76 Misc.3d 505, 173 N.Y.S.3d 439 [Civ. Ct., New York County, 2022]).

Here, there is no dispute that after substitute service of the petition and notice of petition, the affidavit of service was filed more than 400 days prior to the initial November 2021 return date. Petitioner alleges it was simply following pandemic-era court directives and should not be penalized for doing so. The court need not reach this argument because, for the reasons stated below, the court holds that respondent waived any objection to personal jurisdiction. ^[2]

Notice of Appearance and Waiver of Personal Jurisdiction Defense(s)

When a party appears by a notice of appearance and does not object to the court's jurisdiction over them in an answer or motion, any such defense is waived. (s ee Urena v. NYNEX, Inc., 223 A.D.2d 442, 443, 637 N.Y.S.2d 49 [1st Dept. 1996] ("An appearance by a defendant is equivalent to personal service of the summons upon it, unless objection to jurisdiction is asserted either in a pre-answer CPLR 3211 motion or in the answer (CPLR 3211 [e])"); Resolution Trust Corp. v. Beck, 243 A.D.2d 307, 307, 1997 NY Slip Op. 08355 [1st Dept. 1997] (service of a notice of appearance was equivalent to personal service of a summons); U.S. Bank N.A. v. Black, 209 A.D.3d 790, 791, 2022 NY Slip Op. 05732 [2d Dept. 2022] ("The filing of a notice of appearance in an action by a party's counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction"); Bank of America, N.A. v. City of New York Department of Hous. Pres. & Dev., 211 A.D.3d 661, 663, 181 N.Y.S.3d 110 [2d Dept. 2022]]; U.S. Bank National Association as Trustee for Holders of Specialty Underwriting and Residential Finance Trust, Mortgage Loan Asset-Backed Certificates, Series 2006-BC4 v. Rodriguez, 201 A.D.3d 493, 493, 156 N.Y.S.3d 837 [1st Dept. 2022]; 155 Realty LLC v. Mottola, 48 Misc.3d 133 (A), 1, 2015 NY Slip Op. 51069(U) [App. Term, 2d, 11th, & 13th Jud. Dists. 2015] (personal jurisdiction waived in holdover by, among other things, tenant's attorney filing of a notice of appearance)).

In other words, service or filing of a notice of appearance is the equivalent of consenting to the court's jurisdiction over the respondent.

Respondent, however, argues that the CPLR § 3211(e) waiver provision does not apply to summary proceedings. CPLR § 3211(e) applies to all cases except "any proceeding to collect a debt arising out of a consumer credit transaction where a consumer is a defendant or under subdivision one or two of section seven hundred eleven of the real property actions and proceedings law." (emphasis added). This section of the CPLR requires that a motion to dismiss on personal jurisdiction grounds be made within sixty days of an answer.

Although summary proceedings under RPAPL § 711(2) (nonpayment proceedings) and § 711(1) (holdovers after expiration of term) are exempted, § 3211(e) applies to all other summary proceedings. (see Eaton v. New York City Conciliation & Appeals Bd., 56 N.Y.2d 340, 345, 437 N.E.2d 1115 [1982] (where "statute describes the particular situations to which it is to apply an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded") [internal citations omitted]; People v. Heil, 28 Misc.3d 215, 221, 900 N.Y.S.2d 624 [City Ct., Rye 2010] ("Where the Legislature has listed specific items in a statute, the general rule is that the express mention of one thing implies the exclusion of other similar things."); Morales v. County of Nassau, 94 N.Y.2d 218, 224, 724 N.E.2d 756 [1999]).

This proceeding was commenced under RPAPL § 713 and would be clearly subject to the "60-day rule." (see Riverton Associates v. Harvey, 1 Misc.3d 822, 823, 772 N.Y.S.2d 199 [Civ. Ct., New York County., 2003]; see also see also Stein v. Jeff's Express, Inc., 37 Misc.3d 94, 955...