NANCY QUINN KOBA

Anthony M. Giordano, Esq., Ossining, for petitioner. John Campbell, Esq., Tilem & Campbell, P.C., White Plains, for respondent.
NANCY QUINN KOBA, J.

Petitioner/landlord, Linda A. Mangano (“Mangano), commenced this non-payment proceeding to recover possession of residential premises from respondent/tenant, Aberie Ikinko (“Ikinko”), as well as rent due in the amount of $733.46, disbursements in the amount of $200.00 and legal fees in the amount of $1000.00 together with interest thereon from February 1, 2010.

PROCEDURAL HISTORY

The petition was returnable on March 4, 2010. Tenant appeared with counsel, Vojtech Bysticky, Esq. Although in default of answering per RPAPL § 743, the court gave Ikinko until March 8, 2010 to serve her written answer to the petition and scheduled the non-jury trial for March 11, 2010 with the agreement of all parties.

On March 11, 2010, Ikinko appeared with new counsel, Tilem and Campbell, P.C. by Ira Pollack, Esq. Ikinko was not ready for trial arguing she had served a written answer raising various jurisdictional defenses and demanding a jury trial. After hearing oral arguments by both sides as to whether the bench trial should proceed, the court directed Ikinko to file a written motion and set a briefing schedule. The trial was adjourned pending the resolution of the motions.

Ikinko filed a motion seeking dismissal of the petition upon the grounds that: 1) proof of service was not filed within three days of service of the Notice of Petition; 2) the rent demand was served by petitioner and 3) proof of service was defective as it failed to describe who was served, or in the event the petition is not dismissed, for an order granting respondent a jury trial or if a jury trial is not granted, for a stay pending her filing of an Article 78 proceeding to compel a jury trial. Mangano field a cross motion opposing respondent's motion and seeking an order deeming the notice of petition, petition and affidavit of service to be timely filed nunc pro tunc. Both motions were fully submitted on March 31, 2010.

The following papers were read:

Notice of Motion, Affirmation of John Campbell, Esq. and Exhibits “A” through “E” annexed thereto;

Notice of Cross Motion and Affirmation of Anthony M. Giordano, Esq.; and

Affirmation in Reply of John Campbell, Esq.

Upon the foregoing papers and for the reasons set forth below, it is Ordered that respondent's motion is denied in its entirety and petitioner's cross motion is granted to the extent of deeming the affidavit of service of the notice of petition and petition to have been timely filed nunc pro tunc.

The parties are directed to appear for the non jury trial of this matter on May 13, 2010 at 8:30 p.m.

FACTUAL BACKGROUND

On or about January 5, 2010, the parties entered into a house sharing agreement in which Ikinko rented the furnished front room of Mangano's house located at 36 Ellis Place (No.2A), Ossining, New York (“subject premises”) and shared the common areas for $650.00 rent per month.

On or about February 16, 2010, Mangano personally served Ikinko at the subject premises with a three day notice to cure and demand to pay rent due in the amount of $495.00 “as well as additional rent for electricity, gas and a late fee of $30.00.”

On February 22, 2010, the notice of petition and the petition setting forth a hearing date of March 4, 2010 were personally served upon Ikinko at the subject premises. The affidavit of service of the same was notarized on March 3, 2010 and was received by the court clerk on March 4, 2010.

DISCUSSION/ANALYSIS

The notice of petition and petition were personally served upon Ikinko on February 22, 2010 at the subject premises, and therefore service was complete at that time. RPAPL § 735(2)(a). The notice of petition, petition and proof of service must be filed within three days after service. The affidavit of service herein however was not filed with the court clerk until March 4, 2010, more than three days after service. Respondent contends the failure to timely file the proof of service is a jurisdictional defect requiring the dismissal of the petition while petitioner argues the failure to timely file the proof of service is a de minimis error subject to correction.

The resolution of this issue is governed by Uniform Justice Court Action (“UJCA”) § 411 which expressly permits the court to order the filing of a petition or notice of petition in a special proceeding that has not been filed within the time prescribed by law nunc pro tunc. This statute is equally applicable to proof of service of the notice of petition and petition and demonstrates that the failure to timely file proof of service is not a jurisdictional defect. See, Siegel Practice Commentaries, McKinney's, Book 29A, § 411; Zot, Inc. v. Watson, 20 Misc.3d 1113A (N.Y.CC, Kings Co.2008). This is not a situation where service was complete less than five days before the petition was noticed to be heard in contravention of RPAPL § 733(1). Thus, petitioner's cross motion is granted and the affidavit of service is deemed to have been timely filed nunc pro tunc.

Respondent contends the petition must also be dismissed because the petitioner personally served the predicate notice, i.e. the three day notice to cure, which is prohibited by CPLR § 2103(a). This rule allows papers to be served by anyone over the age of eighteen who is not a party to the action. Before a summary proceeding can be commenced based upon a tenant's failure to pay the stipulated rent, RPAPL § 711(2) requires the landlord to first make a demand for the rent or to give at least three days written notice demanding either the payment of the rent or the possession of the premises, which notice must be served upon the tenant as prescribed by RPAPL § 735. It has been held that the demand: “is delivered orally and may be made in person by the landlord or his agent ... Even an adequate demand by telephone has been held to be personal and proper ....“ (internal citations omitted) Schwartz v. Weiss–Newell, 87 Misc.2d 558, 560 (N.Y.CC, N.Y. Co.1976). As an oral demand can be delivered personally by a landlord, a landlord can also serve the written demand for rent so long as he does so in accordance with the provisions of RPAPL § 735.

Moreover a demand for rent is not a pleading. It “provides a tenant notice of nonpayment of rent to permit the tenant's timely payment and avoid a summary proceeding.” Frost Equities Co., LLC v. New York Brasserie Ltd., 5 Misc.3d 1004A (N.Y.CC, N.Y. Co.2004). Accordingly, the provisions of CPLR § 2103(a) are inapplicable to the service of the rent demand and the portion of respondent's motion seeking dismissal on this ground is denied.

Respondent further asserts the petition should be dismissed because the affidavit of service regarding the notice of petition and petition does not contain a physical description of the person served, i.e. Ikinko. The failure to physically describe the person served in an affidavit attesting to the same is not a jurisdictional defect where, as here, service was in fact properly made. Van Wert v. Black & Decker, Inc., 246 A.D.2d 773, 775 (3rd Dept.1998). Respondent does not deny she was personally served with the notice of petition and petition as was proper pursuant to RPAPL § 735, and therefore, the lack of detail in the affidavit of service is not jurisdictional and do not warrant the dismissal of the petition.

As the respondent's motion to dismiss the petition is denied, the court will address her argument that she is entitled to a jury trial herein.

Ikinko was personally served with the notice of petition and petition more than eight days before the time at which it was noticed to be heard, so she was required to answer the same at least three days before the hearing pursuant to RPAPL § 743. She did not answer the petition either orally or in writing before the hearing date. She appeared for the hearing with her attorney on March 4, 2010 as did petitioner and her counsel. Neither respondent nor her attorney demanded a jury trial at that time. Respondent's counsel orally raised some objections to the petition, and the court adjourned the non jury trial one week to March 11, 2010 to permit respondent to file a written answer.

Respondent argues the demand for jury trial stated on the face of her answer served on March 8, 2010 was timely made pursuant to RPAPL § 745(1), which provides in pertinent part: “Where triable issues of fact are raised, they shall be tried by the court unless, at the time the petition is noticed to be heard, a party demands a trial, in which case trial shall be by jury.” However, respondent did not demand a jury trial on the hearing date in accordance with RPAPL § 745(1) thereby waiving her right to the same under this statute.

Moreover, the court is not bound to accept the purported demand contained on the face of respondent's answer. See, Washington v. Palanzo, 192 Misc.2d 577 (App., Term, 2nd Dept.2002). The procedures for demanding a jury trial in a Justice Court are set forth in UJCA § 1303, which provides:

If the defendant appears before the clerk to answer in person, he shall demand a jury trial, if desired, at that time. If he does not do so, either party may demand trial by jury by mailing such a demand to the clerk and all other parties within three days after receiving notice of the trial date as set forth in § 1301(a)....

(c) If the trial date is set by agreement pursuant to § 1301(c), the trial shallbe without jury unless the stipulation provides otherwise.

(d) The party demanding trial by jury shall pay the fee therefore upon making the demand....

(e) Unless a jury is demanded or stipulated to, and the jury fee paid asprovided in section nineteen hundred eleven of this act, trial by jury is waived.

The specific provisions regulating jury trials in UJCA § 1303 supersede the general provisions of RPAPL. Washington, 192 Misc.2d at 579.

In the case at bar, respondent did not timely demand a jury trial. She did not: appear before the clerk to answer the petition and demand a jury trial; demand a jury trial on March 4th when the petition was noticed to be heard and when she appeared in court with her counsel; request a jury trial when the trial date was set with the agreement of all parties; mail a demand for a jury trial within three days of the setting of the trial date or pay the requisite jury fee. By reason of respondent's failure to comply with the provisions of either RPAPL § 745(1) or UJCA § 1303, the court finds that respondent waived her right to a jury trial. Accordingly, the part of her motion seeking a jury trial is denied as is the part of her motion seeking a stay of the trial pending her appeal to a higher court.

The foregoing constitutes the Decision and Order of the Court.