Opinion
H0861/01.
Decided July 13, 2001.
Lenora B. Foote, Esq., Assistant Corporation Counsel, Buffalo, New York, Attorneys for Plaintiff.
Salvatore P. Abbate, Esq., Attorney at Law, Buffalo, New York, Attorney for Defendant.
The defendants were issued separate Summons, by way of "nail and mail" service pursuant to Civil Practice Law and Rules § 308(4) made by an ordinary process server, to appear in the Housing Part of Buffalo City Court on May 30, 2001. Both summons were issued by this Court. On May 30, 2001 the defendants generally appeared through their attorney, but were not personally present in the Court. Defense counsel has submitted separate letters from physicians stating that both defendants are physically unable to attend court proceeding.
Defense counsel then brought this Motion to dismiss the charges against the defendants for lack of personal jurisdiction, based on the failure of the plaintiff to personally serve the defendants, under the authority of People v. Turkel, 130 Misc 2d 47 (1985). After the plaintiff submitted their responding papers to the defendants' Motion citing Article X, § 211 of the Buffalo City Court Act, the defendants then added an additional challenge to the service of the Summonses, based on the plaintiff's failure to comply with Criminal Procedure Law § 130.40, which allows for service only be a police officer, the complainant, or other person designated by the court.
FINDINGS OF THE COURT: Issuance and Service of Summonses Under the Criminal Procedure Law:
Pursuant to Criminal Procedure Law § 130.30, a local criminal court may issue a summons in any case in which, pursuant to Criminal Procedure Law § 120.20, it is authorized to issue a warrant of arrest based on an information, a prosecutor's information or a misdemeanor complaint.
In both of these cases, several Informations have been filed with the Court to satisfy the requirements of both Criminal Procedure Law § 120.20 and Criminal Procedure Law § 130.30.
Criminal Procedure Law § 130.40 is silent as to how a summons is to be served, but states that a summons may be served by a police officer, a complainant who is at least eighteen (18) years old, or any other person, at least eighteen (18) years old, designated by the Court.
The Buffalo City Court Act:
The New York State Legislature amended the Buffalo City Court Act to add Article X which established a Housing Part of Buffalo City Court. Laws of 1978, Article 516. In 1988, all of the Buffalo City Court Act, except Article X, was repealed and replaced by the Uniform City Court Act. Laws of 1988, Article 397. It is understandable that counsel for the defendants may not have known of the existence of the surviving part of the Buffalo City Court Act, because it is a true anomaly in the law, in that it is not published anywhere in McKinney's Laws of New York.
A close examination of Article X, § 211, Service of Summons, states that the procedures used for actions and proceedings in the Buffalo City Court Act are to be followed when serving a summons in the Housing Part, with some additional provisions for service outlined in that part. Except for the above reference, Article X is silent as to who is authorized to serve a summons.
Before being repealed in 1988, the Buffalo City Court Act, as enacted, had Article II designated for civil jurisdiction and procedure (Article II, Civil Jurisdiction and Procedure, § 24, Service of Summons, and § 25, Who May Serve Summons; Proof of Service), and Article III reserved for criminal jurisdiction and procedure (Article III, Criminal Jurisdiction and Procedure, § 69 Summons.)
The question then remains, do the civil rules or the criminal rules for service of a summons apply to Housing Court actions? The answer is found in Article II of the Buffalo City Court Act which was in effect when Article X was enacted in 1978.
Service rules for a summons in actions and proceedings in Buffalo City Court, as referred to in Article X, § 211, were governed by Article II, Civil Jurisdiction and Procedure, § 24, Service of Summons, and § 25, Who May Serve Summons; Proof of Service, and not by Article III, Criminal Jurisdiction and Procedure, § 69 Summons. Laws of 1909, Chapter 570.
Therefore as a result of the specific act of the New York State Legislature, the rules for actions and proceedings in civil practice govern the service of a summons in the Housing Part of the City Court of Buffalo.
The fact that rules for civil procedure were used in not surprising because owners of property in the City of Buffalo often live outside of the territorial jurisdiction of the Court and the long arm jurisdiction provisions of Civil Practice Law and Rules and Uniform City Court Act § 404 are the only ways the Court can obtain jurisdiction over these defendants.
The Repeal of Articles I-IX of The Buffalo City Court Act and the Implementation of the Uniform City Court Act:
As stated above, Articles I-IX of the Buffalo City Court Act were repealed and replaced by the Uniform City Court Act by the New York State Legislature in 1988. Laws of 1988, Article 397.
Uniform City Court Act § 2001, Criminal Jurisdiction and Procedure, states that the unless otherwise specifically prescribed, the practice and procedure in the court shall be governed by the criminal procedure law. Article X of the Buffalo City Court Act does specifically prescribe what the method for service of a summons shall be in the Housing Part of the City Court of Buffalo. Therefore, Criminal Procedure Law § 130.40 does not control the service of summonses in the Housing Part of the City Court of Buffalo, the civil service provisions of the Uniform City Court Act; namely, the Civil Practice Law and Rules control.
A special statute which is in conflict with a general act covering the same subject matter controls the case and repeals the general statute insofar as the special act applies. New York Statutes § 397. Babchak v. Sabers, 54 Misc 2d 150, 155 (1967).
Under the circumstances, the Legislature must be presumed to have been aware of the existing statutes and case law at the time that Article X of the Buffalo City Court Act was adopted in 1978. If the Legislature intended the service of summonses in Housing Court to comply with the Criminal Procedure Law, it could have easily stated as much. See Generally, Foy v. 1120 Ave. of Americas Associates, 223 AD2d 232, 237 (2nd Dept, 1996).
In fact, if it that was the wish of the Legislature to have Criminal Procedure Law § 130.40 control the procedure used for the service of summonses in the Housing Part of the City Court of Buffalo, they could have simply omitted the specific language in § 211 of Article X of the Buffalo City Court Act, and Criminal Procedure Law § 130.40 would have controlled as a matter of law. Criminal Procedure Law § 1.10(1)(a), Criminal Procedure Law § 1.20(17) and Criminal Procedure Law § 10.10(4).
Service in this Action was Proper under the Uniform City Court Act the Civil Practice Law Rules:
Uniform City Court Act § 403 states that service of a summons shall be made in the manner prescribed in supreme court practice. Civil Practice Laws and Rules (herein after referred to as the CPLR) § 101 makes the CPLR the governing set of rules in the supreme courts in New York State. CPLR, Article 3 sets for the manner in which a summons shall be served and CPLR Rule 2103(a) details who can serve papers such as a summons in New York.
CPLR § 308(4), entitled Personal Service upon a Natural Person, allows for affixing the summons to the door of the person to be served, and by mailing a copy of the summons to his or her last known address, if that person cannot be served with due diligence under paragraphs one and two of that section. The Affidavits of Service filed in the present cases states that the summonses were affixed to the defendants' door, after due diligence was attempted, and was then followed up with the required mailings. Therefore, the defendants' contention that Article X, § 211 of the Buffalo City Court Act does not allow for service of a summons by affixing it to the front door of a defendant's residence is without merit.
The defendants allegations that the summons was not affixed to the door but was left in their mail box, carries no weight because it was brought by way of an attorney's affidavit which is without evidentiary value since the attorney lacked personal knowledge of the facts alleged. Wright v. Rite-Aid, 249 AD2d 931 (4th Dept., 1998).
CPLR Rule 2103, entitled Service of Papers, paragraph (a), entitled Who Can Serve, allows for service of papers by any person not a party to an action of the age of eighteen years or older. The Affidavits of Service filed in the present cases state that the person who served both summonses was over the age of eighteen and is not a party to these actions. Therefore, the defendants' contention that the summonses were not properly served by someone authorized by the court to serve them is likewise without merit.
The Authority of People v. Turkel is not Controlling:
The defendant has cited to the case of People v. Turkel, 130 Misc 2d 47 (1985) for the authority that where a statute, such as Criminal Procedure Law § 130.40, is silent as to the manner of service that personal delivery (in hand service as opposed to personal service) is the only permissible method of service. Id. at 48.
First, as stated above, Article X of the Buffalo City Court Act specifically prescribes the manner of service for summonses in the Housing Part of the City Court of Buffalo.
Second, the requirement that a defendant be served with the summons personally was not part of the old Code of Criminal Procedure that the Criminal Procedure Law replaced. Language that would have required that the summons be "served upon the defendant personally" was dropped from the original 1967 proposal of the bill. Practice Commentaries, by Peter Preiser, McKinney's Consolidated Laws of New York, CPL § 130.40, page 364.
Third, Turkel cites to Twentieth Century-Fox Film Corp. v. Dupper, 33 AD2d 682 (1st Dept., 1969) for support of the above referenced authority. Twentieth Century-Fox, in turn gets its authority for this premise from Stevens v. State, 277 AD 418 (3rd Dept., 1950), and from 2Weinstein-Korn-Miller, New York Civil Practice, ¶ 2103.04; 3 Carmody-Wait 2d. However, a close examination of Stevens shows that the court stated that "personal service" not "personal delivery" was required when a statute or rule is silent as to the manner of service. Id. at 420. Also, the authority cited in Weinstein-Korn-Miller dealt with service of papers on an attorney under CPLR § 2103; and again, unlike the present cases, where the rule was silent as to the manner of service.
Finally, Weinstein-Korn-Miller also cites to Turkel, Twentieth Century-Fox and Stevens and therefore suffers from the same faulty logic underlying that line of authority as cited above.
Conclusion:
The defendants were properly served with summonses to appear before this Court for alleged housing code violations, and shall appear for arraignment, either voluntarily or by warrant, unless adequate medical documentation is supplied to this Court showing that they are physically unable to do so. In that case, the Court will arraign the defendants in their home or wherever they are receiving medical treatment.
Besides having a duty to ensure that the defendants' cases are handled fairly and in a timely manner, with all of the Constitutional protections afforded to the defendants; this Court owes a duty to the other tenants and property owners living adjacent to this premises to exercise reasonable care to avoid injury to their persons and property. Rochester Poster v. City of Rochester, 38 AD2d 679 (4th Dept., 1971). Because of the seriousness of the alleged violations, this Court owes a duty to all parties involved to see to it that this matter is handled in a timely manner.
It should be remembered, that the issuance of a summons to a defendant in Housing Court is a courtesy extended to the defendant by the Court, based in part on the likelihood that the defendant will appear on their own without having to physically take the defendant into custody. While the issuance of a summons is the preferred method in matters such as these, the Court owes no duty to extend this courtesy to the defendants. Once an Information is filed with the Court showing that there is reasonable cause that the defendant has committed the offense charged, the Court is also empowered with the ability to issue a warrant to insure the defendant's appearance for arraignment.
The conditions necessary for this Court to issue warrants for the defendants' arrest have been satisfied, wherefore;
IT IS HEREBY ORDERED, that each defendant present medical documentation, which would be admissible as proof under hearsay rule exceptions, to show that both defendants are physically unable to be present in Court. Such medical documentation, such as an affidavit from their physicians, shall include the following information: 1) when was the defendant last examined by the physician, 2) what is the resent physical condition of the defendant, 3) what further treatment is necessary, 4) what are the functional limitations of the defendant caused by the illness or injury, and 5) when is the defendant expected to recover from this injury or illness. Said medical documentation shall be provided to the Court within seven (7) days from the date of this order, and it is further,
ORDERED, that based on that medical documentation the Court will determine whether a hearing is necessary to determine whether the defendants are physically able to appear in Court for arraignment, and it is further,
ORDERED, that upon the filing of the necessary medical documentation, within the prescribed time period, that if the Court determines that the defendants are physically unable to appear for arraignment, the Court will arraign the defendants in their home or wherever they are being treated for their medical condition, and it is further,
ORDERED, that upon the defendants' failure to file such medical documentation in the prescribed time period, a warrant for their arrest shall be issued.