Opinion
Index No. LT-302862-21/NY
10-14-2021
125 East 50th Street, Co., Lessee, LLC Petitioner(s) v. Credo International, Inc. Respondent(s)
Unpublished Opinion
DECISION / ORDER
Sabrina B. Kraus, Judge
In this summary nonpayment proceeding, respondent has failed to appear. Petitioner moves for an order deeming the affidavit of service filed timely nunc pro tunc. Petitioner relies on a former version of New York City Court Act Section 411, which used to explicitly allow for said relief. That statutory provision is no longer in effect, and pursuant to the holding of the Appellate Division, First Department failure to timely file proof of service is a jurisdictional defect (Riverside Syndicate, Inc. v Saltzman 49 A.D.3d 402). While there are some courts that have ruled the late filing can be considered de minimis, under certain circumstances and in other departments [see e.g. Siedlecki v. Doscher, 33 Misc.3d 18, 20 (App. Term 2011)], that is never the case where the relief sought, as here, is entry of a default judgment [ZOT, Inc. v. Watson, 20 Misc.3d 1113(A) (Civ. Ct. 2008)].
Based on the foregoing the motion is denied.
This constitutes the decision and order of the court.