Opinion
June 12, 1975
David R. Frank petitioner pro se. Peter D. Braun for respondent.
Petition was brought on the 29th day of May, 1975, for recovery of the premises located at 99 Melville Street in the City of Rochester. Respondent filed an answer in which she raised five affirmative defenses and two counterclaims. In the first affirmative defense respondent states that the court lacks jurisdiction on the grounds that the petition was served 13 days prior to the return date, which is in violation of section 733 Real Prop. Acts. of the Real Property Actions and Proceedings Law.
Subdivision 1 of section 733 Real Prop. Acts. of the Real Property Actions and Proceedings Law states as follows: "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." In this case the affidavit of service states that the petition was served on May 16, 1975, at 11:30 A.M., and was returnable before this court on the 29th day of May, 1975, which is 13 days later, exclusive of the day of service. A summary proceeding is a special proceeding governed entirely by statute, and there must be strict compliance with the statutory requirements to give the court jurisdiction. Therefore, this matter is dismissed for lack of jurisdiction.