Opinion
LT-003391-19
10-03-2019
US BANK NATIONAL ASSOCIATION, not in it's Individual Capacity but Solely as Trustee for Maroon Plains Trust, Petitioner(s), v. THI VAN TRAN aka Thi Tran ; Cho Tran; "John" "Doe 1-2", "Jane" "Doe 1-2", Respondent(s).
Knuckles, Komosinski & Manfro, LLP, attorneys for Petitioner William D. Friedman, Esq., attorney for Respondent Thi Van Tran
Knuckles, Komosinski & Manfro, LLP, attorneys for Petitioner
William D. Friedman, Esq., attorney for Respondent Thi Van Tran
Scott Fairgrieve, J. Petitioner U.S. Bank National Association commenced this holdover proceeding against Respondent Thi Van Tran a/k/a Thi Tran.
The Petition, dated July 8, 2019, alleges that it acquired title to the subject premises located at 632 Arthur Street, Garden City, New York via Judgment of Possession and Sale and Referee's Deed.
Paragraphs 7 and 8 of the Petition state Respondent Thi Van Tran was served as follows:
"7. In accordance with the provisions of Section 713 of the Real Property Actions and Proceedings Law, a 10 Day Notice to Vacate was served via ‘PERSONAL DELIVERY ’ service upon Respondent CHO TRAN and served via ‘SUITABLE AGE AND DISCRETION ’ service on THI VAN TRAN A/K/A THI TRAN, JOHN DOENo.1-2, JANE DOE#1-2 , on MARCH 23, 2019. Copies of the 10 Day Notice to Vacate, Attorney Certified Referee's Deed, and Limited Power of Attorney are annexed hereto as Exhibit ‘B’ .
8. In addition to the 10 Day Notice to Vacate, an Attorney's Certified Referee's Deed and Limited Power of Attorney were served via ‘PERSONAL DELIVERY ’ service upon Respondent CHO TRAN and served via ‘SUITABLE AGE AND DISCRETION ’ service on THI VAN TRAN A/K/A THI TRAN, JOHN DOE#1-2, JANE DOE#1-2 on MARCH 23, 2019. Copies of the Affidavits of Service of the 10 Day Notice to Vacate, Attorney Certified Referee's Deed, and Limited Power of Attorney are annexed hereto as Exhibit ‘C’ ."
Respondent Thi Van Tran moves for an "order to dismiss the petitioner against Mattie Jackson pursuant to CPLR 3211(a) and (7) and RPAPL 741 for such other relief as the Court deems just and proper." This court excuses the mistake in reference to Mattie Jackson and assumes that Thi Van Tran is making the motion to dismiss.
Respondent states that RPAPL 713(5) requires that Respondents be served with a "certified deed" but a photocopy is legal. See Plotch v. Dellis , 60 Misc. 3d 1, 75 N.Y.S.3d 779 (App. Term, 2nd & 9th Jud. Dist.). Respondent states that an original certification of the deed must be filed with the court after service of the photocopy of same.
Respondent avers that since Petitioner failed to file an original certification, this summary proceeding must be dismissed. This constitutes a jurisdictional defect. Petitioner submits the affirmation of Daria M. Gold, Esq., dated September 17, 2019. It is submitted that Petitioner obtained title to the premises on October 30, 2018.
Petitioner states that Respondent Thi Van Tran was served with a 90 Day Notice to Vacate, together with the attorney certified Referee's Deed and Limited Power of Attorney by suitable age and discretion service upon co-occupant Cho Tran. Furthermore, it is averred that Respondent Thi Van Tran was served by substitute service with the 10 Day Notice to Vacate, together with the attorney Referee's Deed and Limited Power of Attorney upon the co-occupant Cho Tran.
Petitioner contends that Plotch v. Dellis was concerned with two issues:
(1) Whether personal delivery of a certified copy of the deed is required?
(2) Does the copy of the certified deed served need to be an original, or does a copy suffice?
Petitioner states that it complied with the holding of Plotch by service of a certified copy of the certification of the deed by an attorney admitted to practice in New York pursuant to CPLR 2105. The method of service upon Thi Van Tran is not contested by Respondent.
Petitioner contends that the holding of Plotch does not require a filing of an original certification. Thus, Petitioner concludes that no jurisdictional issue is involved. Any failure to file the original is a de minimis defect which can be cured by "Petitioner producing such original upon request of the court or the Respondent, or through production at trial."
The Reply of Respondent, dated October 23, 2019 contends that Plotch requires an original certificate be filed with the court and that failure to do so is jurisdictional.
Decision of the Court
This court agrees with Petitioner, that the failure to file the original certification of the deed pursuant to the requirements of CPLR 2105 is not a jurisdictional defect requiring dismissal.
In Plotch the Court held the following:
"This section of the CPLR requires that the attorney ‘subscribe’ the certificate. It is undisputed that petitioner's attorney signed the original certification,(fn1) that a photocopy was then made of that
document, and that the photocopy was served on occupants. We find that this procedure comports with the requirements of CPLR 2105, for the reasons set forth out in Federal Natl. Mtge. Assn. v. Wagshcal (NYLJ, Jan. 31, 2011, at 33, col 4 [Civ Ct, NY County 2001]; but see Security Pac. Natl. Trust Co. v. Cuevas , 176 Misc. 2d 846, 675 N.Y.S.2d 500 [1998] ).
(fn1) The original certification is attached to the petition filed with the Civil Court. Thus the copy of the deed attached to the petition is certified by compliance with both CPLR 4540(b) and CPLR 2105."
As can be gleaned from the above, service of the photostatic copy of the deed was upheld because the original certification of the deed by the attorney was filed with the Court.
In the case at bar, Petitioner failed to file the original certification.
Petitioner contends that it is not jurisdictional for its failure to file the original certification, and that it should be allowed to correct this mistake. Respondent counters that the failure to file the certification is jurisdictional mandating dismissal.
This court believes that the failure to file the original certification is not a jurisdictional defect and may be corrected by the Petitioner by filing the original certification.
In Hall v. Bray , 61 Misc. 3d 921, 86 N.Y.S. 3d 393 (Bronx Co., Sup. Ct., 2018), the plaintiff failed to file an affidavit of compliance and other documents required by Vehicle and Traffic Law Section 253. The defendant moved for summary judgment to dismiss the action because the failure to file the affidavit of compliance and other documents constituted a jurisdictional defect requiring dismissal of the action on statute of limitation grounds. The Court rejected the defendant's argument that failure to file was jurisdictional. The Court held the failure to file the documents required by VTL § 253 was a procedural irregularity and could be corrected by the filing of the documents.
"It is well settled that a statute permitting service of process other than by personal service must be strictly complied with in order to confer jurisdiction [over the defendant] upon the *927 court" ( Air Conditioning Training Corp. v. Pirrote , 270 App. Div. 391, 393 [1st Dept. 1946] ). Vehicle and Traffic Law § 253 is no exception (
Bingham v. Ryder Truck Rental , 110 A.D.2d 867 [2d Dept. 1985] ). However, as observed by the Court in Air Conditioning Training Corp. , ‘[t]here is ... a difference between service and proof of service. One is a fact of which the other is the evidence’ ( 270 App. Div. at 393 ). Thus, the failure to file proof of service is a procedural irregularity—not a jurisdictional defect—and the court, employing CPLR 2004, may extend a plaintiff's time to file such proof ( First Fed. Sav. & Loan Assn. of Charleston v. Tezzi , 164 A.D.3d 758 [2d Dept. 2018] ; Khan v. Hernandez , 122 A.D.3d 802 [2d Dept. 2014] ; see Lancaster v. Kindor , 98 A.D.2d 300, 306 [1st Dept. 1984] [delay in filing proof of service is mere procedural irregularity that may be corrected] ). The filing of the proof of service does have an important (but non-jurisdictional) consequence: it pertains to the time within which a defendant must answer or move against the complaint ( Lancaster v. Kindor , 98 A.D.2d at 306 ).
Generally, the case law regarding the failure to file proof of service addresses situations where a plaintiff did not file proof of service after effecting service under CPLR 308 (2) —deliver-and-mail—or 308 (4)—affix-and-mail. Both of those service provisions require an ‘affidavit of service’ to be filed by a plaintiff after the required service steps are taken. Service is deemed ‘complete’ 10 days after the filing of an affidavit of service; a defendant's time to answer or move against the complaint runs from the completion of service (see CPLR 308 [2 ], [4] ).
The affidavit of compliance called for by Vehicle and Traffic Law § 253 is the equivalent of the affidavit of service required under CPLR 308 (2) and (4). The affidavit of compliance, like the affidavit of service, is evidence of service, not service itself (see generally Air Conditioning Training Corp. v. Pirrote , 270 App. Div. at 393 ). The name of the Vehicle and Traffic Law § 253 affidavit makes that point plain: the ‘affidavit of compliance’ is designed to demonstrate that the plaintiff complied
with the service steps laid out in the statute. Thus, plaintiff's failure to file timely the affidavit of compliance did not constitute a jurisdictional defect. Similarly, plaintiff's failure to file timely the certified-mailing envelope bearing the "unclaimed" notation and the certificate of mailing evidencing that plaintiff sent
the process by ordinary mail did not constitute a jurisdictional defect (see Albrecht v. Gordon , 182 A.D.2d 1131 [4th Dept. 1992] ; see also Michaud v. Lussier , 6 A.D.2d 746 [3d Dept. 1958] *928 [construing the predecessor statute to Vehicle and Traffic Law § 253 ], affd 7 N.Y.2d 934 [197 N.Y.S.2d 737, 165 N.E.2d 579] [1960] ; Johnson v. Bunnell , 8 A.D.2d 832 [2d Dept. 1959] [same] )."
See Navillus Tile, Inc. v. LC Main, LLC , 98 A.D.3d 979, 950 N.Y.S.2d 748 (2nd Dept. 2012) wherein the Court granted the time to file an application for an extension of a lien nunc pro tunc where the application was timely filed but not presented to a judge until after the extension date pursuant to CPLR 2004.
Based upon the above, Respondent's motion is denied. Plaintiff shall file the required original certification within 10 days of the date of this decision. Failure to file the original certification within 10 days shall result in dismissal of this proceeding.
This case is set down for conference on October 24, 2019 at 9:30 a.m.
So Ordered