Siedlecki v. Doscher

• Decision Date: 28 July 2011
• Citation: 931 N.Y.S.2d 203,2011 N.Y. Slip Op. 21268,33 Misc.3d 18
• Parties: Leszek SIEDLECKI, Appellant,v.Susan DOSCHER and William Doscher, Respondents,and“John Doe” and “Jane Doe”, Undertenants.
• Court: New York Supreme Court — Appellate Division

33 Misc.3d 18

931 N.Y.S.2d 203

2011 N.Y. Slip Op. 21268

Leszek SIEDLECKI, Appellant,

v.Susan DOSCHER and William Doscher, Respondents,and“John Doe” and “Jane Doe”, Undertenants.

Supreme Court, Appellate Term,2nd, 11th and 13th Judicial Districts.

July 28, 2011.

Piazza D‘Addario & Frumin, Brooklyn (Ron D'Addario of counsel), for appellant.Brooklyn Legal Services Corporation A, Brooklyn (Joanne Koslofsky and Martin S. Needelman of counsel), for respondents.Present: WESTON, J.P., GOLIA and RIOS, JJ.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eleanora Ofshtein, J.), dated January 20, 2010. The order, insofar as appealed from as limited by the brief, granted tenants' motion to dismiss the petition in a holdover summary proceeding.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and tenants' motion to dismiss the petition is denied.

In this owner's use holdover proceeding, landlord, after filing the petition in the Civil Court, and obtaining an index number and the issuance by the clerk of a notice of petition on July 1, 2009, effected service of the petition and notice of petition on July 14, 2009 upon one of the two cotenants by personal delivery and upon the remaining cotenant by delivery to a person of suitable age and discretion and by mailing the papers within one day thereafter. The petition was returnable on July 21, 2009. The petition, notice of petition, and proof of service were filed with the court on July 17, 2009. Tenants moved to dismiss the petition on the ground that landlord had failed to file the notice of petition, petition and proof of service with the court at least five days before the return date of the petition and thus had failed to timely complete service with respect to the cotenant who had been served by substituted service (RPAPL 733[1]; 735[2][b] ). The Civil Court, relying on Riverside Syndicate, Inc. v. Saltzman, 49 A.D.3d 402, 852 N.Y.S.2d 840 [1st Dept.2008] and Berkeley Assoc. Co. v. Di Nolfi, 122 A.D.2d 703, 706, 505 N.Y.S.2d 630 [1st Dept.1986], ruled that “strict compliance” with the statutory requirement for the filing of proof of service was necessary to confer jurisdiction on the court and dismissed the petition. We disagree and reverse.

As this court has previously noted, the Appellate Division in this judicial department has rejected the “strict compliance” approach to jurisdiction in summary proceedings, and has stated that summary proceedings are to be treated like other civil actions ( see Lanz v. Lifrieri, 104 A.D.2d 400, 478 N.Y.S.2d 722 [1984]; Birchwood Towers # 2 Assoc. v. Schwartz, 98 A.D.2d 699, 469 N.Y.S.2d 94 [1983]; see also 17th Holding v. Rivera, 195 Misc.2d 531, 758 N.Y.S.2d 758 [App. Term, 2d & 11th Jud. Dists. 2002]; but see Clarke v. Wallace Oil Co., 284 A.D.2d 492, 493, 727 N.Y.S.2d 139 [2d Dept.2001] ).

RPAPL 735(2) requires that the notice of petition and petition, together with proof of service, be filed within three days after the mailing to the respondent, when service is not made by personal delivery, and further provides that “such service shall be complete upon the filing of proof of service.” CPLR 308(2) and (4), which govern service in actions by methods other than personal delivery, contain a similar requirement for the completion of service by filing proof of service. Under the CPLR provisions, it has been expressly held that the filing of proof of service is not...