Opinion
SP050465.
Decided March 23, 2005.
R. Christopher Dempf Tobin and Dempf, LLP Albany, New York, Attorney for Petitioner.
Gordon Bentley DePaul Residence, Albany, New York, Respondent, pro se.
This non-payment summary proceeding was commenced by the Petitioner by service of a Petition and Notice of Petition upon the respondent by "conspicuous" or "nail and mail" service under RPAPL § 735(1) on March 4, 2005, mailing same to the respondent by regular and certified mail on March 5, 2005, and by filing same together with proof of service with the clerk of this court on March 8, 2005. Service was complete under RPAPL § 735(2)(b) on March 8, 2005, when the papers were filed by petitioner.
Under RPAPL § 733(1), the petition and notice of petition must be served "at least five and not more than twelve days before the time at which the petition is noticed to be heard". The requirements of RPAPL § 733(1) are jurisdictional in nature, and a failure to comply with them will result in the dismissal of the summary proceeding, unless the issue is waived by the respondent. Berkeley Associates Co. v. Di Nolfi, 122 AD2d 703, 505 NYS2d 630 (1st Dept 1986); Ron Rose Group, Inc. v. Gavish, 2002 NY Slip Op 40194U (App Term, 2nd Dept 2002).
The return date chosen by the petitioner herein was March 11, 2005. This date was not in compliance with RPAPL § 733(1), as the petition and notice of petition were not served at least five days before the time at which the petition was noticed to be heard. Petitioner's attorney is requesting the court to allow filing of the affidavit of service herein nunc pro tunc, even though it was filed only three days prior to the return date of this proceeding. Petitioner appeared on the return date, while the respondent did not.
The issue before the court is whether such an order (that the petition, notice of petition and proof of service be filed nunc pro tunc as of the date due) will cure petitioner's "short filing" of the papers. It should be noted that petitioner did, in fact, file the papers in a timely fashion. RPAPL § 735(2) requires that petitioner file the papers within three days of mailing them to respondent, which was done in this case. A nunc pro tunc order would cure the defect of a petitioner's failure to timely file the papers in a summary proceeding, since, unlike the service requirements of § 733, the failure to comply with the filing requirements of RPAPL § 735(2) is not a jurisdictional defect. Friedlander v. Ramos, 3 Misc 3d 33, 779 NYS2d 327 (App Term, 2nd Dept 2004); See also Jamal Estates v. Crockwell, 113 Misc 2d 548, 453 NYS2d 134 (App Term, 1st Dept 1982).
However, the First Department has held that the failure to timely serve the papers in a summary proceeding in accordance with RPAPL § 733(1), a so-called "short filing" of the papers, is a jurisdictional defect. Berkeley Associates Co. v. Di Nolfi, 122 AD2d 703, 505 NYS2d 630 (1st Dept 1986); Ron Rose Group, Inc. v. Gavish, 2002 NY Slip Op 40194U (App Term, 2nd Dept 2002). Respondent cites Jamal Estates v. Crockwell, 113 Misc 2d 548, 453 NYS2d 134 (App Term, 1st Dept 1982), for the proposition that "short filing" of the papers is not a jurisdictional defect and, therefore, a court's nunc pro tunc order will cure such a defect.
This issue was fully briefed in a decision of the Civil Court of the City of New York [ 445 East 85th Street, LLC v. Phillips, 2003 NY Slip Op 51270U (2003)]. The Civil Court made the distinction between "late filing" and "short filing", stating that "Civil Court Act § 411 [which is equivalent to UCCA § 411 — "filing nunc pro tunc"] allows a court to correct late filing, but does not, by its terms, allow retroactive short filing" (445 East 85th Street, LLC at 6 [emphasis added]). This court is in agreement with the NY City Civil Court, which determined that the First Department in Berkeley effectively, albeit not directly, overruled the Jamal case, and held that "[i]n light of Berkeley, Jamal can no longer be the law" ( 445 East 85th Street, 2003 NY Slip Op 51270U at 4 citing Berkeley Assocs, 122 AD2d at 705-706). The Jamal case was decided in 1982 by an Appellate Term Court in the First Department. Berkeley was decided in 1986 by the Appellate Division of the First Department. Because Berkeley is an Appellate Division case, Appellate Term decisions holding to the contrary cannot control. Moreover, this Court could find no decisions from the other Departments of the Appellate Division or the Court of Appeals that have ruled on this issue. Accordingly, this Court is constrained to follow the legal precedent set by the Appellate Division of the First Department in Berkeley, until such time as the Court of Appeals or the Appellate Division of the Third Department holds otherwise.
For all the foregoing reasons, the within Petition and Notice of Petition are dismissed due to petitioner's failure to comply with the service requirements of RPAPL § 733(1), and in accordance with Berkeley Associates Co. v. Di Nolfi, 122 AD2d 703, 505 NYS2d 630 (1st Dept 1986).
So ordered.