Opinion
SP-07-65
02-02-2015
Ken Martin, Jr., Petitioner-Landlord, v. Byron Sandoval AND Miriam Acevedo 104 Spring Street, Apt. Peekskill, New York 10566, Respondent-Tenants.
Matthew Mazzamurrow, Esq. Attorney for Respondent 1011 Park Street, Suite 6 Peekskill, New York 10566 (914) 736-3074 Ken Martin, Jr. Petitioner/Landlord P.O. Box 107 Maryknoll, New York 10545
Matthew Mazzamurrow, Esq.
Attorney for Respondent
1011 Park Street, Suite 6
Peekskill, New York 10566
(914) 736-3074
Ken Martin, Jr.
Petitioner/Landlord
P.O. Box 107
Maryknoll, New York 10545
Reginald J. Johnson, J.
The Respondent-Tenant, Byron Sandoval (hereinafter "the Respondent"), moves by Order to Show Cause seeking a stay of the issuance of a judgment and warrant pursuant to CPLR 2004 and restoration of the matter to the calendar so that the Respondent may be heard; or, in the alternative, seeking an order vacating the warrant of eviction and the judgment in favor of the Landlord pursuant to RPAPL §§749(3) and CPLR 5015(a), dismissal of the petition, and for such other relief as seems just to the Court.
For the reasons that follow, the motion is denied in its entirety.
Procedural History
On January 16, 2007, the Landlord commenced a non-payment proceeding against the Respondents by filing a notice of petition and petition with the Court. On January 17, 2007, the notice of petition and petition were personally served on the Respondents. On January 22, 2007, the affidavit of service was filed with the Court. On January 23, 2007, the Landlord and Respondent appeared in the Landlord/Tenant Part of this Court for a first appearance in this matter. The Court scheduled a hearing for February 6, 2007 at 9:30 a.m. before Judge William Maher. At the conclusion of the hearing, the Court rendered a judgment in favor of the Landlord for $2,385 plus $315.00 in costs, together with a warrant of eviction with no stay. There was no further activity in this matter until Respondent Sandoval filed the within Order to Show Cause on January 6, 2015. On January 30, 2015, the parties were directed to appear before this Court for a hearing on the Order to Show Cause. The Respondent appeared but the Landlord did not, after which the motion was marked fully submitted.
An affidavit of service in the file indicates that Byron Sandoval and Mirna Acevedo were both personally served with a three-day notice and a notice of petition and petition in this matter.
Discussion
Vacating the Warrant of Eviction Pursuant to RPAPL §749(3)
The Respondent argues, pursuant to RPAPL §749(3) that the warrant of eviction should vacated because the affidavit of service was filed with the Court five (5) days from the date of its service instead of three (3) days as required by Real Property Actions and Proceedings Law ("RPAPL") §735(2)(a). That section states, in pertinent part,
RPAPL §749(3) states, in pertinent part, "that nothing contained herein shall deprive the court of the power to vacate such warrant for good cause shown prior to the execution thereof."
The notice of petition, or order to show cause, and petition together with proof of service thereof shall be filed with the court or clerk thereof within three days after; personal delivery to respondent, when service has been made by that means, and such service shall be complete immediately upon such personal delivery; or mailing to respondent, when service is made by the alternatives above provided, and such service shall be complete upon the filing of proof of service.
It is well settled that a landlord's failure to comply with RPAPL §735(2)(a) by failing to file the requisite proof of service of a notice of petition and petition within three (3) days after service of same is not a jurisdictional defect. See, Siedlecki v. Doscher, 33 Misc 3d 18, 933 N.Y.S.2d 203 (App. Term, 2d, 11th & 13th Jud. Dists. 2011); Djokic v. Perez, 22 Misc 3d, 930, 872 N.Y.S.2d 263 (NY City Civil Ct. 2008); Friedlander v. Ramos, 3 Misc 3d 33, 779 N.Y.S.2d 327 (App. Term, 2d Dept. 2004); Zot Inc. v. Watson, N.Y.L.J., 7/30/08, p. 29, col. 1.; Lanz v. Lifrieri, 104 AD2d 400, 478 N.Y.S.2d 722 (2d Dept. 1984).
The vast majority of courts and commentators are of the view that filing a late affidavit of service in a summary proceeding can be excused or granted nunc pro tunc relief. See, Friedlander v. Ramos, supra; Zot v. Watson, supra; Mangano v. Ikinko, 958 N.Y.S.2d 308 (Ossining Just. Ct. 2010); Djokic v. Perez, 872 N.Y.S.2d at 268, quoting Ward v. Kaufman, 120 AD2d 929, 502 N.Y.S.2d 883 (4th Dept.)("The failure to file a timely affidavit of service is not a jurisdictional defect, but merely a procedural irregularity which can be cured by an order nunc pro tunc."); Finkelstein and Lucas, Landlord and Tenant Practice in New York, §15:350 [2014]; Fame Equities & Mgmt. Co. v. Malcolm, N.Y.L.J., 10/28/96, p. 27, col. 4 (App. Term, 1st Dept.)("failure to file proof of service is not a jurisdictional defect."); Ardo Corp. v. Bierly, N.Y.L.J., 3/21/94, p. 29, col. 6 (App. Term, 1st Dept.)("the court properly permitted nunc pro tunc filing of the Notice of Petition and proof of service since failure to comply with the filing requirement is not a jurisdictional defect."); Tasman v. Esposito, N.Y.L.J., 11/21/90, p. 27, col. 1 (App. Term, 9th and 10th Jud. Dists.)("The fact that the notice of petition and notice of petition and proof of service may not have been filed within three days after service as required is not a fatal jurisdictional defect Indeed a court is empowered to afford nunc pro tunc relief from its late filing ."); 14 Carmody-Wait 2d §90:152 [2014].
However, since a summary proceeding is a special proceeding mandating strict compliance with its procedural requirements in order to give the court jurisdiction (See, Riverside Syndicate, Inc. v. Saltzman, 49 AD3d 402 [1st Dept. 2008], citing Berkley Assoc. Co. v. Di Nolfi, 122 AD2d 703, 505 N.Y.S.2d 630 [1st Dept. 1986], lv. dismissed 69 NY2d 804, 513 N.Y.S.2d 386, 505 N.E.2d 951 [1987]; MSG Pomp Corp. v. Doe, 185 AD2d 798, 586 N.Y.S.2d 965 [1992]), it would appear that noncompliance with the procedural requirement in RPAPL 735(2) that an affidavit of service be filed with the court within three (3) days after service of the notice of petition and petition mandates dismissal of the proceeding for lack of subject matter jurisdiction. See, Wendt and Benjamin, Service of Process under Section 735 of the RPAPL, NY State Bar Journal, April 1988, p. 38. Notwithstanding this kind of noncompliance, the Second Department has said [w]e adopt the reasoning of a recent trend of cases which treat summary proceedings the same way as any other type of civil case and which refuse to consider de minimis variations from strict compliance as jurisdictional defects. Lanz v. Lifieri, 104 AD2d at 401.
Since summary proceedings are now given a sort of de minimis variations analysis (See, Zot v. Watson, supra, Judge Kraus granted petitioner's motion to deem the affidavit timely filed, concluding that the short filing of the affidavit of service was a de minimis violation of RPAPL §735(2) and not fatal), the Court holds that even though the affidavit of service for the notice of petition and petition in the instant case was filed with the Court five (5) days after its service instead of three (3) as required by RPAPL §735(2) this constitutes a de minimis violation of RPAPL §735(2) and the Court is not divested of subject matter jurisdiction.
Filing proof of service does not relate to the jurisdiction of the Court which is acquired by the service of the summons or, in this case, by the service of the petition and notice of petition. See, Helfand v. Cohen, 110 AD2d 751, 487 N.Y.S.2d 836 (2d Dept. 1985). "The purpose of requiring the filing of proof of service pertains to the time within which the defendant must answer and does not relate to the jurisdiction acquired by the court upon service of the summons." See, Reporter Co., Inc. v. Tomicki, 60 AD2d 947, 401 N.Y.S.2d 322 (3d Dept. 1978); 86 NY Jur.2d, Process and Papers, §130 ("failure to file, or delay in filing, proof of service is merely a procedural irregularity and not jurisdictional and may be corrected nunc pro tunc by the court.")
The Respondent's application to vacate the warrant of eviction pursuant to RPAPL §749(3), which permits a Court to vacate a warrant of eviction for "good cause" shown prior to the execution of said warrant, is addressed to the sound discretion of the Court. See New York City Housing Authority v. Torres, 61 AD2d 681, 403 N.Y.S.2d 527 (1st Dept. 1978). It has been held that a Court retains jurisdiction to vacate a warrant of eviction even after it has been executed. See, Harvey 1390 LLC v. Bodenheim, 96 AD3d 664, 948 N.Y.S.2d 32 (1st Dept. 2012)(Court held that trial court had power to vacate warrant of eviction prior to its execution for "good cause shown," and, in the appropriate circumstances, even after the warrant has been executed); Brusco v. Braun, 84 NY2d 674, 682, 645 N.E.2d 724, 727 (1994)(same). In the case at bar, the Respondent was personally served with the notice of petition and petition on January 17, 2007; he personally appeared at the hearing in this matter on February 6, 2007, but he erroneously thought that the security deposit held by the Landlord would satisfy his debt. Accordingly, the Respondent has not demonstrated "good cause" warranting a vacatur of the warrant of eviction in this matter. Further, the Respondent makes no claim that the warrant of eviction was obtained by fraud (See, 7402 Bay Parkway Associates v. Diamond, 116 Misc 2d 403, 458 N.Y.S.2d 122 (NY City Civil Ct. 1982)(Court held that where a warrant of eviction is the product of calculated fraud it is of no force and effect). The Respondent now claims almost eight (8) years after the hearing that "I do not read or write or understand English and I could not afford a lawyer at the time of this case." See, Resp. Affd., ¶7. Interestingly, the Respondent does not state that he raised any of these issues at his hearing. The Court finds these claims unpersuasive and insufficient to warrant vacatur of the warrant of eviction pursuant to RPAPL §749(3).
In his affidavit in support of the Order to Show Cause, the Respondent stated "I was in court and very scared and thought that I would give my security deposit to the landlord and that my obligation to him would be settled." Resp. Affid., ¶8.
II.Vacating the Judgment and Warrant Pursuant to CPLR 5015(a)
The Respondent also moves to vacate the money judgment and warrant in this matter pursuant to CPLR §5015(a). Although the Respondent does not specify what section of CPLR §5015(a) he relies upon, the Court presumes that he relies upon CPLR §5015(a)(4) (lack of jurisdiction to render judgment or order) because the Respondent argues that the Court lacked subject matter jurisdiction due to Landlord's failure to file his affidavit of service with the Court within three (3) days after its service. See, Resp., Affid., ¶11; Affirm. of Mazzamurrow, ¶¶ 4, 6.
It is well settled that a Court possesses inherent discretionary power to grant a party relief from its judgment pursuant to CPLR 5015(a). See, Dyno v.Lewis, 300 AD2d 784, 752 N.Y.S.2d 117 (3d Dept. 2002) (Court's inherent power to exercise control over its judgments is limited and should only be exercised in instances of fraud, mistake, inadvertence, surprise, or excusable neglect) lv to appl dism 99 NY2d 651, 760 N.Y.S.2d 104, 790 N.E.2d 278 (2003); Kohm v. Nostrand X. Realty Associates, 288 AD2d 139, 733 N.Y.S.2d 402 (1st Dept. 2001)(Court held that it has the inherent power to relieve a party from a default even after the expiration of one year); International Fidelity Ins. Co. v. City of New York, 263 F.Supp.2d 619 (E.D.NY 2003). Further, it is the rule in New York that where a court vacates the final judgment, the warrant of eviction is vacated ipso facto. See, Kensico Associates, LLC. v. Bennett, 2002 WL 2008235 (App. Term 9 & 10th Jud. Dists.).
The issuance of a warrant is a distinct step taken in a summary proceeding and is independent of the judgment upon which it is predicated, even though it is the judgment that gives life to the warrant. See, Tauszig v. Kantor, 115 Misc. 366, 188 N.Y.S. 92 (App. Term 1st Dept. 1920); Greenberg v. Cagle, 212 N.Y.S.2d 767 (Sup. Ct. Kings County 1961); RPAPL §749(1). Scherer and Fisher, Residential Landlord Tenant in NY §17.38 (2014)("Motions to vacate a judgment, either explicitly or implicitly, always seeks vacatur of the warrant of eviction; if the judgment falls, the warrant of eviction falls.").
Turning to the case at bar, the Respondent's main argument for seeking a vacatur of the money judgment was that the Court allegedly lacked subject matter jurisdiction at the time of the hearing; this argument has been fully addressed above in this decision and shown to be without merit. Since the Court's authority to vacate its judgment, particularly an eight-year-old judgment, is limited to those instances in which the judgment debtor demonstrates that the judgment was procured through "[fraud,] mistake, inadvertence, surprise or excusable neglect" [McKenna v. County of Nassau, Off. of County Attorney, 61 NY2d 739, 742 (1984) quoting Ladd v. Stevenson, 112 NY 325 (1889); Katz v. Marra, 74 AD3d 888, 905 N.Y.S.2d 204 (2d Dept. 2010)], the Court will analyze the Respondent's argument applying the criteria set forth in McKenna, supra.
The Respondent makes no claim that the judgment against him was procured through fraud, inadvertence, or surprise. However, he does allege that he thought that if he forfeited his security deposit to the Landlord his obligation to the Landlord would be settled. Respn. Aff., ¶8. It appears that the Respondent made a strategic decision at the hearing to forgo the security deposit under the mistaken belief, albeit understandable belief, that would satisfy his debt to the Landlord. The Respondent's ineffective or mistaken hearing/trial strategy is an insufficient basis to warrant vacatur of the final judgment. Cf., 105 NY Jur.2d, Trial, §602 ("When the attack is collateral, long-delayed, or merely reflects a disappointed or ill-prepared litigant's second thought, a new trial is always denied).
With regard to excusable neglect under CPLR 5015, which requires a party to proffer a reasonable excuse for failing to move to vacate a default judgment within one year after its issuance (See, HSBC Bank USA, National Association v. Miller, 121 AD3d 1044, 995 N.Y.S.2d 198 (2d Dept. 2014), there was no need for the Respondent to allege this as a basis to vacate the judgment herein because it was not obtained on default.
Since the Respondent has failed to demonstrate that the judgment herein was procured by or through "[fraud,] mistake, inadvertence, surprise or excusable neglect," and he has otherwise failed to demonstrate "good cause" for the vacatur of the judgment pursuant to CPLR 5015(a)(4), the motion by Order to Show Cause seeking to vacate the warrant and judgment in this matter is denied. See, Empire State Conglomerates v. Mahbur, 105 AD3d 898, 963 N.Y.S.2d 330 (2d Dept. 2013).
The Respondent's request for relief pursuant to CPLR §2004 is denied. That section only "applies to the extension of time for the doing of acts in actions and proceedings and not for the doing of acts which are substantive in character and provided for under other statutes." See, Powers v. Foley, 25 AD2d 525, 267 N.Y.S.2d 459 (2d Dept. 1966). In the case at bar, an extension of time to do an act in an action or proceeding that has already been terminated cannot be granted under CPLR 2004 since that section contemplates a pending action. See, Knapek v. MV Southwest Cape, 110 AD2d 928, 487 N.Y.S.2d 176 (3d Dept. 1985).
Lastly, it has been held that failure to file timely proof of service is excusable pursuant to the Uniform City Court Act (U.C.C.A.) §409 since that section sets forth no specific time limitations. See, Djokic v. Perez, 872 N.Y.S.2d at 268. This Court holds that U.C.C.A. §409 could be utilized by a party or the Court to remedy a late filing of proof of service under RPAPL §735(2).
U.C.C.A §409(a) states, in pertinent part, " Proof of service of the summons and complaint, notice of petition and petition or order to show cause and petition shall be filed with the clerk of the court."
The Djokic case refers to NY City Civ. Ct. Act §409 which is the companion section to UCCA §409.
Based on the foregoing, it is
Ordered that the Order to Show Cause is denied in its entirety.
The foregoing constitutes the Decision and Order of the Court.
______________________
Hon. Reginald J. Johnson
City Court Judge
Dated: Peekskill, NY
February 2, 2015