Zot, Inc. v. Watson, 2008 NY Slip Op 51341(U) (N.Y. Civ. Ct. 7/2/2008)
| Decision Date | 02 July 2008 |
| Docket Number | L & T 107951/07. |
| Citation | 2008 NY Slip Op 51341 |
| Parties | ZOT, INC., Petitioner-Landlord v. RUBY WATSON, Respondent-Tenant Barbara Watson Respondent-Undertenant. |
| Court | New York Civil Court |
Gutman Mintz et al., By: Uygar C. Konur, Esq., New Hyde Park, New York, Attorneys for Petitioner.
The Legal Aid Society, Brooklyn Office for the Aging, By: Diane E. Lutwak, Esq., Brooklyn, NY, Attorneys for Respondent.
This summary holdover proceeding was commenced by ZOT, INC., ("Petitioner") and seeks to recover possession of Apartment 5E, at 350 Empire Boulevard, Brooklyn, New York, 11217 ("Subject Premises") from the rent-stabilized tenant of record, RUBY WATSON ("Respondent") and her daughter BARABARA WATSON ("Respondent's Daughter"), based on allegations that Respondent has created or allowed a nuisance in the subject premises.
This proceeding was commenced by issuance of a 10 Day Notice to Terminate, dated November 14, 2007 ("Predicate Notice"), terminating Respondent's tenancy as of December 3, 2007. The Notice of Petition and Petition were served on December 27, 2007, by delivery to Respondent's Daughter, a person alleged to be of suitable age and discretion, residing at the subject premises.
The proceeding was initially returnable on January 3, 2008 and on Respondent's request to obtain counsel, was adjourned to January 23, 2008. On January 23, 2008, Respondent appeared and advised the Court that she qualified for the Assigned Counsel Program, and the proceeding was further adjourned to February 26, 2008, for counsel to appear.
On February 26, 2008, The Legal Aid Society, Brooklyn Office for the Aging, appeared on behalf of Respondent, and on or about March 13, 2008, filed an answer with counterclaim on her behalf. The proceeding was adjourned over the next five court dates, by consent of both attorneys, for settlement discussions and motion practice.
Petitioner moves the Court for an order deeming the Notice of Petition, Petition, and Affidavit of Service for the Petition timely filed nunc pro tunc. Respondent cross-moves for an order dismissing the proceeding pursuant to RPAPL § 733(1) and § 735(2)(b). The motions are consolidated herein for disposition.1
Does the late filing of the affidavit of service deprive the Court of personal jurisdiction over Respondent or subject matter jurisdiction over the proceeding, or is it a de minimis error subject to correction?
RPAPL § 733(1) provides "Except as provided in section 732, relating to a proceeding for nonpayment of rent, the notice of petition and petition shall be served at least five and not more than twelve days, before the time at which the petition is noticed to be heard."
RPAPL § 735(2)(b) provides that when service is made by any method other than personal delivery to the Respondent "such service shall be complete upon the filing of proof of service."
Petitioner served the Petition herein, by substituted service on Respondent's Daughter. The service was made on December 27, 2007 at 10:12 a.m.. A mailing was also done on December 27, 2007. However, the proof of service was not filed until January 2, 2008. The Petition was noticed to be heard on January 3, 2008.
Proof of service should have been filed no later than December 31, 2007, which would have been within three business days from the mailing on December 27, 2007, as required by RPAPL §735(2), and would have satisfied the requirement that service be completed five days before the return date, as the fifth day prior to the return date was December 29, 2007, a Saturday, and the next business day on which proof of service could have been filed was December 31, 2007. The filing on January 2, 2008 was two days late, and one business day after December 31, 2007.
Respondent argues that service was thus not "complete" five days before the return date of the petition, and that this delay in filing the proof of service mandates dismissal of the proceeding, in accordance with RPAPL 733(1).
Petitioner argues that the late filing of the affidavit of service is de minimis, and that such defect is subject to correction by motion asking that the Court deem the affidavit of service timely filed nunc pro tunc. Petitioner's request for relief is supported by recent appellate case law in the Second Department, including, but not limited to Friedlander v. Ramos, 3 Misc 3d 33 (2004), wherein The Appellate Term affirmed a Civil Court ruling granting a landlord's motion to deem a late filed affidavit of service timely nunc pro tunc.
Respondent argues however that Friedlander, and other cases with similar holdings are no longer valid law, because Friedlander relied in part on § 411 of the New York City Civil Court Act ("NYCCCA"), which has since been amended. Prior to September 8, 2005, § 411 of NYCCCA provided that where a petition or notice of petition had not been filed timely, the court could order the filing thereof nunc pro tunc.. The current provision of NYCCCA § 411 has eliminated such language.
However, Respondent's argument ignores the reasoning behind the statutory amendment, and other amendments to the NYCCCA, which were made at the same time. The new § 411 of the NYCCCA eliminated the provision for nunc pro tunc relief, because the relief was no longer necessary, based on other amendments made to the NYCCCA at the same time. The amendments, taken as a whole, were aimed at the conversion of the commencement of cases in New York City Civil Court, from a system of commencement by service to a system of commencement by filing. See e.g. New York Sponsors Memorandum, 2005 A.B. A7255B ().
The new amendments collectively form Chapter 452 of the NYCCCA, and eliminate any time deadline for the filing of proof of service. § 409 of NYCCCA was amended from requiring that proof of service be filed within a specific time frame, to simply a requirement that proof of service be filed. By its explicit terms §409(a) applies to petitions and notices of petition in special proceedings, and is no less applicable to summary proceedings then previous provisions of Chapter 452 of the NYCCCA.
To the extent that there is a conflict between the time requirements of NYCCCA and RPAPL, the provisions of the NYCCCA, which are intended specifically for proceedings in New York City Civil Court, as opposed to statewide provisions of the RPAPL, prevail.
... where there is a conflict between the general provisions of the RPAPL and specific provisions of statutes regulating ... trials in local courts, the specific provisions will be taken as a statutory exception to the general provisions and will prevail. (3 Rasch, New York Landlord and Tenant, Summary Proceedings, § 1339 [2d ed, 1971].)
319 West 48th Street Realty Corp. v. Slenis, 117 Misc 2d 259, 260-61 (Civ. Ct., NY Co., 1982); Barrett v. Bartels, N.Y.L.J., Aug. 23, 1990, p.18, col.5 (Civ. Ct., NY Co., 1990); Washington v. Palanzo, 192 Misc 2d 577 ((App. Term, 2nd Dept., 2002); Metropolitan Transportation Authority v. Terminal Drago Shine Stands, Inc., 119 Misc 2d 10 (1983)
Nor does the NYCCCA require that proof of service be filed in order for Civil Court to have jurisdiction over a party to a special proceeding. NYCCCA §400(2) provides that jurisdiction is acquired over a party to a special proceeding by service upon such party of the notice of petition and petition. As noted by Professor David Siegel, there is no basis to find that the repeal of the nunc pro tunc provision of NYCCCA § 411 makes the failure to timely file proof of service a jurisdictional defect. In fact, quite the opposite is true.
The amendment of § 409(a) strikes out all of the time limits on when proof of service must be filed and merely makes a general statement requiring the filing, with no time limit imposed. There should therefore be no tension about the filing of proof of service.
.......
Even under the old law, which imposed specific and short time limits on the filing of proof of service, another provision — the old § 411 that's now replaced by the new one — allowed the court to permit a nunc pro tunc filing establishing that the timely filing of proof of service was not a jurisdictional requirement even under prior law. That should be the case a fortiori under the new Chapter 452, which repeals the old § 411 as unnecessary and enacts a new § 411 in its place.
Siegel's Practice Review, August 2005, 164 Siegel's Prac. Rev. 1, Part 1 (emphasis added).2
Moreover, in reviewing the cases addressing these issues, there is a distinction to be made between a true violation of RPAPL § 733(1), where acts other than filling proof of service necessary to acquire jurisdiction over the respondent are not complete five days before the petition is noticed to be heard, and cases, such as the case at bar, where all acts for service were timely made in accordance with RPAPL § 733(1), but the affidavit of service was filed late.
The cases relied upon by Respondent in seeking dismissal, primarily are cases where acts other than the filing of the proof of service were late, and thus the defect becomes jurisdictional rather than de minimis, as the tenants in those proceedings were prejudiced by insufficient notice under the statute. For example, in 445 East 85th Street LlC v. Phillips, 2003 WL 22170112, 2003 NY Slip Op. 51270(U)(Civ. Ct., NY Co., Lebovits, J.), which reasoning Respondent urges this Court to adopt, the Court specifically held:
This court holds no brief about whether late filing is a nonjurisidictional defect that a nunc pro tunc order can remedy. The jurisprudence is unanimous that it is, because failing to file proof of service timely is a technical defect, a mere irregularity...
To continue reading
Request your trial