Opinion
Index No. LT-000210-23/LF
12-08-2023
Edward Cooley and Barbara Cooley, Plaintiff, v. Lance Vanslyke, Defendants.
Gerard Snyder, Esq. Attorney for Petitioner. Clara O'Brien, Esq. Attorney for Respondent.
Gerard Snyder, Esq. Attorney for Petitioner.
Clara O'Brien, Esq. Attorney for Respondent.
JOSHUA P. BANNISTER, J.
Procedural History
Petitioner filed the instant summary proceeding on October 2, 2023, and the matter came before the Court for a pre-trial conference on October 26, 2023. Counsel for Respondent moved to dismiss the petition. The Court ordered a written memorandum of law to be filed November 2, 2023, and the Petitioner's reply to be filed by November 9, 2023, with the matter proceeding to trial, if necessary, on November 11, 2023. On consent, Petitioner's attorney was given more time to reply which was received by the Court on December 6, 2023. The matter proceeded to oral argument on December 7, 2023. The Court reserved decision and adjourned the matter for trial, if necessary, on December 11, 2023.
Facts
It is undisputed that "nail and mail" service was completed on October 16, 2023. The affidavit of service was not filed with the court until the initial appearance with counsel on October 26, 2023.
Issue
The issue in this case is whether the Court should waive the strict statutory requirement that proof of service must be filed within three days.
Relevant Law
RPAPL § 735[2] mandates that the proof of service "shall be filed with the court or clerk thereof within three days" As written, the statute leaves little discretion to the court to obtain jurisdiction of the case where the affidavit is filed after three days. However, there is a split of authority in the judicial departments about whether the court should dispense with the strict requirements of the statute. Each trial court is bound to follow the decisions of their respective Appellate Divisions.
The general rule is that strict compliance with the statute is required (Riverside Syndicate, Inc v Saltzman, 49 A.D.3d 402 [1st Dept 2008]; see also 125 E. 50th St v Credo International Inc, 75Misc.3d 134(A)[U] [App Term, 1st Dept 2022], lv denied [2022 NY Slip Op 73253 [U] [1st Dept 2022]). However, the courts in the Second Department seem to bound by their Appellate Term's holding in Siedlecki, which holds that the court can waive strict compliance with the statutory requirements absent demonstratable prejudice (Siedlecki v Doscher, 33 Misc.3d 18 [App. Term, 2d, 11th, & 13th Jud Dists, 2d Dept 2011]; see also Columbia Leasing LP v Williams, 2023 Slip Op 23206 [City Ct, Queens County 2023].
For the upstate trial courts, the distinction between the Second Department's Appellate Term holding in Siedlecki and the Appellate Division's First Department holding in Saltzman was discussed in Columbia Leasing, supra, that "unlike the Appellate Terms, which serve at the leisure of their respective Appellate Divisions, the Appellate Divisions are statewide courts, whose precedents are binding on all trial courts in the absence of a contrary holding by the Appellate Division in their designated judicial department" (Columbia Leasing, supra, at 2 [internal citations omitted]). The court in Columbia Leasing went on to say that it "presumably remains binding on all trial courts" outside the Second Department (supra, at 2). However, the Fourth Department has in fact ruled on the CPLR's time requirements for filing affidavits of service in a medical malpractice case. In Ward v Kaufman the Appellate Division, Fourth Department stated "[t]he 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" (120 A.D.2d 929, 931 [1986] [internal citations omitted]).
Analysis
There is no disagreement that the proof of service in this case was filed ten days after service was completed. The disagreement centered on the controlling law which is outcome determinative.
Counsel for the Respondent argued that Ward is distinguishable as it is a medical malpractice case rather than a summary proceeding. She argued that although it would likely apply in an ejectment proceeding in a Supreme Court within the Fourth Department, it does not specifically address the issue as it relates to summary proceedings which has its own service requirements. Respondent's counsel also distinguished the case at bar as it deals with "nail and mail" service vice personal service.
The Court asked Respondent's counsel how the Respondent would be prejudiced if the Court were to apply the Ward and Siedlecki rules to the instant case. Had the court decided the matter on the record against the Respondent when the motion was initially made with the matter proceeding immediately to trial, such a situation could have possibly resulted in an earlier eviction date if the Petitioner was successful on the merits. However, that concern is mitigated by RPAPL § 753 which allows for a stay "for a period of not more than one year" upon weighing the various factors in that statute. Respondent's counsel also brought up that they did not have a copy of the affidavit of service until after the first court appearance. However, counsel has had that affidavit since November 3, 2023. Counsel argued that the plain language of RPAPL § 735 should apply and her client is prejudiced by not following the black letters of the law. However, it should be noted that counsel referenced the CPLR in her memorandum of law because it presumably applied to summary proceedings but could not explain why the court couldn't rely on the plain language of CPLR § 2001 to disregard irregularities in the filing process so long as "a substantial right of a party is not prejudiced".
It is difficult for the court to conceive how the Respondent would be prejudiced by applying the Fourth Department's Ward decision to summary proceedings beyond the fact that the summary proceeding itself is adverse to the Respondent. Had the court granted Respondent's motion to dismiss on October 26th, Petitioner could have refiled on October 27th and followed the strict requirements of RPAPL § 735. In such an event, the case could have been returnable by November 13th and a fourteen-day adjournment for counsel would put the matter out to November 27th for a trial on the merits. This is a date that would have placed the trial over a week in the past. Such a scenario would have put the Respondent in a position where he would have to face a trial and a possible eviction at an earlier date than he is at the present time.
After careful consideration, this Court decides that the controlling law is our Appellate Division's rule in Ward which is consistent with the Siedlecki line of cases in the Second Department. In other words, the Court decides that the First Department's strict compliance requirement in Saltzman is not binding on trial courts in the Fourth Department because our own appellate division in Ward has ruled on the strict compliance issue with respect to filing affidavits of service which applies to all types of affidavits of service.
Although the filing of the affidavit of service in this case is past the requirement in RPAPL §735[2] that the proof of service be filed within three days, the Petitioner submitted proof at oral argument that the strict filing requirements should be cured nunc pro tunc because the Respondent was in fact served, appeared in court with counsel, and had the court granted the dismissal on October 26th, the matter could have been placed on the trial calendar before today's date. The Respondent has not demonstrated how the late filing of the affidavit of service has prejudiced him beyond the fact that he must defend the instant action. As such, the court finds that the failure to file the affidavit of service within three days is a procedural irregularity and should be cured by an order nunc pro tunc.
Order
Therefore, it is hereby ORDERED:
1. The untimely affidavit of service in this case is accepted nunc pro tunc as if it were timely.
2. The motion to dismiss is hereby denied.
3. The matter will proceed to trial on Monday, December 11, 2023, at 9:00 a.m.
This is the Decision and Order of the Court.