Opinion
Index No. 611904/2023
05-08-2024
Wilmington Savings Fund Society, FSB, d/b/a Christiana Trust, Not in its Individual Capacity but Solely as Trustee for Brougham Fund I Trust, Petitioner, v. Joyce Iandoli; Christopher Iandoli; John Doe #1 - #10 (Said Names Being Fictitious Names Representing Unknown Tenants/Occupants Residing at the Property), All Rooms Located at 67 Sycamore Circle Stony Brook, NY 11790, Respondents.
PLAINTIFF'S ATTORNEY STERN & EISENBERG, PC RESPONDENTS' ATTORNEY F.J. ROMANO & ASSOCIATES, PC
Unpublished Opinion
PLAINTIFF'S ATTORNEY STERN & EISENBERG, PC
RESPONDENTS' ATTORNEY F.J. ROMANO & ASSOCIATES, PC
Maureen T. Liccione, J.
Upon the e-filed documents numbered 13 to 31, and upon due deliberation, it is determined as follows:
ORDERED that respondents' motion to dismiss (motion sequence no. 2) the Petition pursuant to RPAPL 735 (2) (a) and CPLR 3211 (a) (8) is denied; and it is further
ORDERED that petitioner's summary judgment motion (motion sequence no. 3) is granted; and it is further
ADJUDGED AND DECREED that petitioner is awarded a final judgment of possession against all respondents with a warrant of eviction; and it is further
ORDERED that a warrant of eviction as against all respondents will be issued forthwith and the earliest execution date of the warrant of eviction is June 27, 2024.
On May 11, 2023, the petitioner, the owner of the real property located at 67 Sycamore Circle, Stony Brook, NY 11790 (Property), initiated a summary holdover proceeding (motion sequence no. 1), pursuant to Article 7 of the Real Property Actions and Proceedings Law, specifically Section 713 (5), to gain possession of the Property and for a warrant to remove respondents Joyce Iandoli (Joyce), Christopher Iandoli (Christopher) and John Doe 1-10 (said names being fictitious names representing unknown tenants/occupants residing at the property) (collectively respondents) from possession of the Property. Petitioner is the owner of the Property pursuant to a referee's deed dated September 29, 2022, which shows respondent Joyce et al., as the previous owners of the foreclosed Property. Petitioner claims that the respondents are occupying and possessing the Property without petitioner's permission and that no landlord tenant relationship exists between the parties. Petitioner brings this action under RPAPL § 713 (5), which states that a special proceeding may be maintained under Article 7 after a ten-day notice to quit has been served upon the respondent in the manner prescribed in section 735, upon the ground that "the property has been sold in foreclosure and either the deed delivered pursuant to such sale, or a copy of such deed, certified as provided in the civil practice law and rules, has been exhibited to him." Respondents filed a Verified Answer on June 20, 2023.
Respondents moved to dismiss the Petition (motion sequence no. 2) arguing that petitioner has failed to comply with RPAPL § 735 (2), which requires the filing of proof of service of the pleadings within three days of service thereof. Petitioner cross-moved for an order denying respondents' motion to dismiss and granting petitioner summary judgment, striking the Answer filed by respondents, and entering default against the non-appearing respondents. In its cross motion, petitioner alleges that it has demonstrated its entitlement for a warrant of eviction, that service upon the respondents was proper, and that the Petition is in compliance with RPAPL § 741. With its cross-motion papers filed on July 10, 2023, petitioner included affidavits of service showing that on May 19, 2023, the notice of Petition and Petition with exhibits were served on Joyce personally, and on Christopher and "John Doe #1- #10" by delivering to and leaving personally with Joyce, co-occupant, a person of suitable age and discretion and mailed via regular and certified mail. Although the notice for the cross-motion states that petitioner also seeks an order denying respondents' motion to dismiss, petitioner's attorney's affirmation contains no discussion as to why the motion to dismiss should be denied (but for the inclusion of the late filed affidavits of service). In opposition to respondents' cross-motion, Joyce and Christopher submitted affidavits stating that Christopher "found the petition and other papers rolled up in the handle of [their] door" (NYSCEF Doc Nos. 30-31) and that Joyce was not personally served.
The Verified Answer was filed on behalf of the "respondents" and there is no indication in the Verified Answer that the Verified Answer was only filed on behalf of Joyce and Christopher, and not John Doe 1-10. Accordingly, there are no "non-appearing respondents" in this proceeding.
Jurisdiction of the Supreme Court to Hear this Summary Proceeding
Before deciding the merits of the underlying motions, the Court will first address the issue of whether this Court has jurisdiction to hear this summary proceeding. RPAPL § 701 (1) provides that "[a] special proceeding to recover real property may be maintained in a county court, the court of a police justice of the village, a justice court, a court of civil jurisdiction in a city, or a district court." Although the Supreme Court is not listed in RPAPL § 701 (1), it has been held that the Supreme Court has concurrent jurisdiction in such matters by virtue of its unlimited general jurisdiction over all real property actions (A&L 1664 LLC v Jaspar Hosp. LLC, 201 A.D.3d 512, 512 [1st Dept 2022]; RSG-Shef 298 Weirfield LLC v Khoshaba, 2021 WL 507710, at *1 [Sup Ct, New York County, Feb. 2, 2021, No. 515637/2020]; 609 West Associates, L.P. v Garcia, 2007 WL 3992604, at *1 [Sup Ct, New York County, Nov. 9, 2007, No. 0109093/2007]; Mahshie v Dooley, 48 Misc.2d 1098, 1100 [Sup Ct, Onondaga County, Special Term 1965]).
Thus, the Court will hear this summary proceeding. The Court also notes that none of the parties moved for this case to be transferred to Suffolk County District Court and that respondents did not request for a transfer to the District Court as an affirmative defense (Marbru Assocs. v White, 114 A.D.3d 554, 555 [1st Dept 2014] ["Whether the action should actually be transferred is a matter to be decided by Supreme Court, in its discretion, should either party affirmatively move for such relief"]), and that none of the parties informed the Court of any pending related action or proceeding in the District Court (A&L 1664 LLC, 201 A.D.3d at 512).
Respondents' Motion to Dismiss
In their motion to dismiss the Petition, respondents argue that petitioner failed to comply with RPAPL § 735 (2) and that there is no proof that petitioner obtained personal jurisdiction over respondents and that such error cannot be cured at this juncture of the proceeding (NYSCEF Doc Nos. 14 and 29). Respondents cite to no case law in support of their arguments. RPAPL § 735 (2) requires the filing of an affidavit of service of the petition and notice of petition within three days after (a) personal delivery to respondent, and "such service shall be complete immediately upon such personal delivery" or after (b) mailing to respondent and "such service shall be complete upon the filing of proof of service." Here, petitioner filed the affidavits of service on July 10, 2023 with its cross-motion papers, 52 days after completing service on May 19, 2023 "seemingly a violation of the statute notwithstanding the lack of any demonstrable prejudice" (Columbia Leasing L.P. v Williams, 80 Misc.3d 884, 886 [Civ Ct, Queens County 2023]).
Whether the late filing of affidavits of service, an RPAPL § 735 (2) defect, requires dismissal of the proceeding as a "jurisdictional" defect or is a de minimis error subject to correction in the absence of prejudice is a complex question, with which numerous courts have grappled. Arriving at the correct answer is nothing short of an odyssey, which must start with a discussion of Riverside Syndicate, Inc. v Saltzman (49 A.D.3d 402 [1st Dept 2008]) and its strict compliance requirement. In Saltzman, the Appellate Division, First Department dismissed a summary proceeding because the landlord failed to "complete" service of the notice of petitions and petitions by filing proof of service at least five days prior to the date the petitions were noticed to be heard as required by RPAPL § 733 (id.). There was a one-day delay in filing proof of service of the petition (id.). The Appellate Division noted "a summary proceeding is a special proceeding 'governed entirely by statute and it is well established that there must be strict compliance with the statutory requirements to give the court jurisdiction."' (id. at 402 [emphasis added]). Saltzman provides that the late filing of the affidavit deprives the court of "jurisdiction," because absent strict compliance with the statute, the proceeding must be dismissed (ZOT, Inc. v Watson, 20 Misc.3d 1113 [A] [Civ Ct, Kings County 2008]).
Three years after Saltzman, the Appellate Term, Second Department, held that "the Appellate Division in [the Second Department] rejected the 'strict compliance' approach to jurisdiction in summary proceedings" and concluded that "the filing of proof of service is not jurisdictional in nature and that jurisdiction attaches when there has been delivery of the papers and mailing" and that an untimely filing is a non-prejudicial error that can be disregarded pursuant to CPLR 2001 (Siedlecki v Doscher, 33 Misc.3d 18, 20 [App Term, 2d Dept, 11th & 13th Jud Dists 2011]; see also Columbia Leasing L.P., 80 Misc.3d at 887; M&S Queens Realty LLC v London, 79 Misc.3d 788, 790 [Civ Ct, Queens County 2023]). In support of its holding that the Second Department has abandoned a strict compliance approach to summary proceedings, the Appellate Term in Siedlecki cited to two Appellate Division cases, Lanz v Lifrieri (104 A.D.2d 400, 401 [2d Dept 1984]), where the court "treat[ed] summary proceedings the same as any other type of civil case" and "refused to consider de minimis variations from strict compliance as jurisdictional defects" and Birchwood Towers No. 2 Assocs. v Schwartz (98 A.D.2d 699, 700 [2d Dept 1983]), where the court held that a "petition in a summary proceeding is no different than a pleading in any other type of civil case." The Appellate Term in Siedlecki noted that under CPLR 308 (2) and (4), which contain a similar requirement for the completion of service by filing proof of service, it has been expressly held by the Second Department that the filing of proof of service is not jurisdictional in nature and that jurisdiction attaches when there has been delivery of the papers and mailing (see e.g. Conde v Zaganjor, 66 A.D.3d 947 [2d Dept 2009]; Helfand v Cohen, 110 A.D.2d 751 [2d Dept 1985]) and held that the "same rule regarding the attachment of jurisdiction should obtain in summary proceedings" (Siedlecki, 33 Misc.3d at 20).
The conflicting Saltzman and Siedlecki holdings "have placed the trial courts in the Second Department in a predicament" (Columbia Leasing L.P., 80 Misc.3d at 887). The Court notes that the Siedlecki holding is not binding on this Court, as it is issued by the Appellate Term for the Second, Eleventh and Thirteenth Judicial Districts of the Second Department, and the Appellate Term does not have jurisdiction to hear or determine appeals from the Supreme Court (see 23 NYCRR 730.1 [d]; 29 Holding Corp. v Diaz, 3 Misc.3d 808, 816 [Sup Ct, Queens County 2004] "[Supreme] Court is not bound by the precedents of the Appellate Term, either in this department or in other departments"]). While the Siedlecki opinion is merely persuasive authority on this Court (People v Garcia, 21 Misc.3d 732, 739 [Sup Ct, Bronx County 2008]), the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or the Appellate Division, Second Department pronounces a contrary rule (Mountain View Coach Lines, Inc. v Storms, 102 A.D.2d 663, 664 [2d Dept 1984]).
This brings this Court to the next step of the analysis, which entails viewing the First Department's decision in Saltzman through the "subsequent lens of the Court Appeals' decision in Ruffin v Lion Corp." (Plaza Borinquen 88 Owner II LP v Montalvo, 82 Misc.3d 1223 [A] [Civ Ct, Bronx County 2024]) and that court's interpretation of the 2007 amendment to CPLR 2001. CPLR 2001 was amended in 2007 "to clarify that a mistake in the method of filing, as opposed to a mistake in what is filed, is a mistake subject to correction in the court's discretion" (Sponsor's Mem, Bill Jacket, L 2007, ch 529) and to read as follows [amendments in italics]:
"At any stage of an action, including the filing of a summons with notice, summons and complaint or petition to commence an action, the court may permit a mistake, omission, defect or irregularity, including the failure to purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded, provided that any applicable fees shall be paid."
Two years after Saltzman, the Court of Appeals in Ruffin found that the 2007 amendment to CPLR 2001 "was to allow courts to correct or disregard technical defects, occurring at the commencement of an action, that do not prejudice the opposing party," that CPLR 2001 applied equally to defects in filing and service, and that "CPLR 2001 may be used to cure only a 'technical infirmity'" (Ruffin v Lion Corp., 15 N.Y.3d 578, 582 [2010] [internal quotation omitted]). The Court of Appeals further explained that "[i]n deciding whether a defect in service is merely technical, courts must be guided by the principle of notice to the defendant-notice that must be 'reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections'" (id.). Stated another way, if the defect in service or filing decreases the likelihood that the respondent will receive the pleadings and thus be able to respond to them, the defect cannot be disregarded (Nardeo, 2024 WL 371966, at *2). The Ruffin decision found that a service defect pursuant to CPLR 313 related to the process server's residence was a non-prejudicial irregularity, which may be disregarded under CPLR 2001 (Ruffin, 15 N.Y.3d at 583).
Interestingly, Saltzman was issued just six months after CPLR 2001 was amended, but two and a half years before Ruffin, and did not refer to CPLR 2001 (Nardeo v Diaz, 2024 WL 371966, at *2 [New York City Civ Ct, Bronx County, Jan. 31, 2024, No. 325965/2023]). Siedlecki, on the other hand, was decided after Ruffin and does refer to CPLR 2001 (see id.).
CPLR 2001 applies to special proceedings, as indicated by the statute's legislative history (see MacLeod v Cnty of Nassau, 75 A.D.3d 57, 62 [2d Dept 2010]; Nardeo, 2024 WL 371966, at *2). And summary proceedings are a type of special proceedings (Berkeley Assocs. Co. v Di Nolfi, 122 A.D.2d 703, 705 [1st Dept 1986]; ZOT, Inc., 20 Misc.3d 1113[A]). In fact, numerous courts have referred to or applied CPLR 2001 in summary proceedings (see e.g Siedlecki, 33 Misc.3d at 20; Dupont Realty, LLC v Garcia, 73 Misc.3d 128 [A] [App. Term, 1st Dept 2021]; W. End Heights, LLC v Sobrado-Torres, 82 Misc.3d 1216[A] [City Ct, Tompkins County 2024]; Plaza Borinquen 88 Owner II LP, 82 Misc.3d at 1223[A]; Nardeo 2024 WL 371966, at *2; Djokic v Perez, 22 Misc.3d 930, 936 [Civ Ct, Kings County 2008]).
Therefore, this Court holds that in light of Ruffin, which is binding authority, this Court will not follow the Saltzman 's broad holding that late filing deprives the court of personal jurisdiction. Instead, pursuant to Ruffin, this Court can disregard the late filing of an affidavit of service as a technical infirmity within the scope of CPLR 2001. This holding is consistent with a number of City Courts and County Courts in the Second Department that have held that the late filing of the affidavit of service is a de minimis defect where the respondent has not been prejudiced in a summary proceeding (see e.g. Columbia Leasing L.P., 80 Misc.3d at 886; Martin v Sandoval, 46 Misc.3d 1216 [A] [City Ct, City of Peekskill 2015]; Djokic, 22 Misc.3d at 936; ZOT, Inc., 20 Misc.3d at 1113[A]; Eiler v North, 121 Misc.2d 539, 542 [Co Ct, Delaware County 1983]).
Furthermore, the filing of proof of service does not relate to the jurisdiction of the Court, which is acquired by the service of the summons or, in this case, by the service of the petition and notice of petition (Martin, 46 Misc.3d 1216[A]; see Helfand v Cohen, 110 A.D.2d 751, 752 [2d Dept 1985] ["The purpose of requiring the filing of proof of service pertains to the time within which the defendant must answer and does not relate to the jurisdiction acquired by the court upon service of the summons."]). As eloquently described in Air Conditioning Training Corp. v Pirrote (270 AD 391, 393 [1st Dept 1946]), "[i]t is the fact of proper service which confers jurisdiction. Once such service has been made, an insufficient proof thereof will not take away the jurisdiction which has in fact been obtained." In fact, in the context of CPLR 308 (2), the Second Department has on numerous occasions held that failure to file timely proof of service does not constitute a jurisdictional defect, but rather a procedural irregularity that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR 2001 and 2004 (Li v Joffe, 210 A.D.3d 737, 739 [2d Dept 2022]; First Fed. Sav. & Loan Assn. of Charleston v Tezzi, 164 A.D.3d 758, 760 [2d Dept 2018]; Khan v Hernandez, 122 A.D.3d 802, 803 [2d Dept 2014]). The affidavit of service called for by RPAPL § 735 (2) is the equivalent of the affidavit of service required under CPLR 308 (2) and (4) (see Siedlecki, 33 Misc.3d at 20).
Here, respondents have not demonstrated or even alleged how the late filing of the affidavits of service have prejudiced them. As such, the Court finds that the failure to file the affidavit of service within three days is a "mere technical infirmity which should be disregarded by the [C]ourt" pursuant to CPLR 2001 (Nardeo, 2024 WL 371966, at *2; Cooley v Vanslyke, 82 Misc.3d 342, 346 [Little Falls City Ct, Herkimer County 2023] ["failure to file the affidavit of service within three days is a procedural irregularity"]). Furthermore, as explained below, service effectuated by petitioner was reasonably calculated to apprise respondents of this proceeding and afford them the opportunity to defend against it (see Ruffin, 15 N.Y.3d at 582). As the late filing of the affidavits of service "shall be disregarded as a non-prejudicial defect" (Nardeo, 2024 WL 371966, at *5), which can be cured per CPLR 2001 and Ruffin, respondents' motion to dismiss is denied.
Petitioner's Summary Judgment Motion
Petitioner has moved for summary judgment to dismiss respondents' affirmative defenses and for a judgment on the merits.
On a motion for summary judgment, the movant has the burden to show, through evidence in admissible form (Bush v St. Clare's Hosp., 82 N.Y.2d 738, 738 [1993]; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]), that it is entitled to judgment as a matter of law and that there are no disputed issues of material fact (CPLR 3212; Matter of New York City Asbestos Litig., 33 N.Y.3d 20, 25 [2019]). If the movant meets its burden, then the non-movant must show that there is a material issue of fact to be resolved at trial (Matter of Eighth Jud. Dist. Asbestos Litig., 33 N.Y.3d 488, 496 [2019]). If the movant does not meet its burden, then the motion must be denied regardless of the sufficiency of the opposing papers (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]). On summary judgment, the Court must view the evidence in the light most favorable to the non-moving party (id.).
Petitioner's cross-motion for summary judgment is granted in its entirety. Petitioner established a prima facie case of entitlement to a judgment of possession as a matter of law pursuant to RPAPL § 713 (5) by tendering evidentiary proof in admissible form demonstrating the absence of any triable issues of fact (1274 51 Realty, LLC v. Gross, 15 Misc.3d 1055, 1058 [Civ Ct, Kings County 2007]; see Zuckerman, 49 N.Y.2d at 562). Petitioner is the owner of the Property pursuant to a referee's deed and is entitled to bring this post-foreclosure holdover proceeding under RPAPL § 713 (5). By providing affidavits of service, petitioner demonstrated that it had exhibited the certified referee's deed to respondents (see Kushnir v Hartman, 61 Misc.3d 131 [A] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]), that it had served a ten-day notice to quit per RPAPL § 713 (5), and that it served respondents in accordance with RPAPL § 735. Respondents failed to show that there are any material issues of fact to be resolved and accordingly all their affirmative defenses must be dismissed. Furthermore, no issue of fact was raised by respondents as to whether they had any possessory interest in the Property or any right to continued occupancy (Aloni v Oliver, 70 Misc.3d 137 (A) [App Term, 1st Dept 2021]).
Respondents' affirmative defenses, which are mostly based on lack of jurisdiction, fail to raise issues of fact to be resolved at trial. Respondents raised the following six affirmative defenses: lack of personal jurisdiction, failure to serve respondents as required by RPAPL § 735, failure to serve the predicate notice needed to commence this processing, failure to file proof of service as required by RPAPL § 735, failure to adequately describe the Property as required by RPAPL § 741, and finally, failure to verify the Petition.
Respondents' first and second affirmative defenses allege that the Court lacks personal jurisdiction over the respondents and that petitioner failed to serve respondents as required by RPAPL § 735. RPAPL § 735 (1) sets the manner of service for summary proceedings and states that "[s]ervice of the notice of petition and petition shall be made by personally delivering them to the respondent; or by delivering to and leaving personally with a person of suitable age and discretion who resides... at the property sought to be recovered, a copy of the notice of petition and petition, if upon reasonable application admittance can be obtained and such person found who will receive it;... and in addition, within one day after such delivering to such suitable person..., by mailing to the respondent both by registered or certified mail and by regular first class mail." Respondents argue that Joyce was never served personally and provide affidavits from Joyce and Christopher stating that Christopher found the papers rolled up in the handle of the door. Respondents further contend that a traverse hearing is required as to the alleged service on Joyce.
"Ordinarily, a process server's affidavit of service constitutes prima facie evidence that the defendant was validly served" (US Bank, Natl. Assn. v Schumacher, 172 A.D.3d 1137, 1137 [2d Dept 2019], quoting U.S. Bank, N.A. v Peralta, 142 A.D.3d 988, 988 [2d Dept 2016]). "However, when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit of the process server, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing" (id.; Deutsche Bank Nat. Tr. Co. v DaCosta, 97 A.D.3d 630, 631 [2d Dept 2012] [emphasis added]; see also Tuttnauer USA Co. v Russo, 216 A.D.3d 846, 847 [2d Dept 2023] ["A sworn denial of receipt of service containing 'detailed and specific contradiction of the allegations in the process server's affidavit' will defeat the presumption of proper service"] [internal quotation omitted]). "[B]are and unsubstantiated denials are insufficient to rebut the presumption of service" (Wachovia Bank, Nat. Assn. v Greenberg, 138 A.D.3d 984, 985 [2d Dept 2016]). A traverse hearing is not required where "the defendant fails to swear to specific facts rebutting the statements in the process server's affidavit" (Tuttnauer USA Co., 216 A.D.3d at 847).
Petitioner's affidavits of service constituted prima facie evidence of proper service pursuant to RPAPL § 735 (1) upon the respondents. The process server averred, inter alia, that on May 19, 2023, at 2:34 p.m., he served Joyce with the notice of Petition and Petition personally, and he served Christopher with the notice of Petition and Petition by delivering to and leaving personally with Joyce, a co-occupant, a person of suitable age and discretion and by mailing such documents via certified and regular mail. The process server's affidavits include a physical description of Joyce, including the specific features "missing teeth, glasses" (NYSCEF Doc No. 23).
Here, respondents have provided little in the way of probative facts beyond an unequivocal denial of personal service and the unsubstantiated statement that Christopher "found the petition and other papers rolled up in the handle of our door" (NYSCEF Doc No. 30). Joyce has not, for example, advised the Court in her affidavit that she was out of town, at work, or otherwise away from the Property in a specific location on the date and time of the service stated in the affidavit herein (AS v AS, 10 Misc.3d 1074 [A] [Sup Ct, Nassau County 2006]; see Deutsche Bank Natl. Tr. Co. v Kenol, 205 A.D.3d 1004, 1005 [2d Dept 2022]). The affidavit does not even specify what date Christopher allegedly found the petition and the papers rolled up in the handle of the door. Even claiming that she was not at home at the time of the service (which Joyce did not allege in her affidavit) would have been a conclusory and unsubstantiated assertion insufficient to warrant a hearing (Tuttnauer USA Co., 216 A.D.3d at 847; U.S. Bank Natl. Assn. v Smith, 210 A.D.3d 725, 727 [2d Dept 2022]). Thus, such "bare and unsubstantiated denial of service lacked the factual specificity and detail required to rebut the prima facie proof of proper service set forth in the affidavit of service" (Cmty. W. Bank, N.A. v Stephen, 127 A.D.3d 1008, 1009 [2d Dept 2015]; Deutsche Bank Nat. Tr. Co. v Quinones, 114 A.D.3d 719, 719 [2d Dept 2014]) and do not warrant a hearing to determine the propriety of service of process. Personal service on Joyce and substituted service on Christopher was in accordance with RPAPL § 735 (1) and conferred personal jurisdiction over respondents to this Court.
With their third affirmative defense, respondents claims that petitioner has failed to serve respondents "with the required predicate notice prior to commencing" this proceeding (NYSCEF Doc No. 12). Respondents allege that petitioner failed to comply with RPAPL § 733 as it did not complete service on Christopher at least 10 days prior to the time the Petition was to be heard. The Court finds this argument unavailing. RPAPL § 733 (1) requires that "the notice of petition and petition shall be served at least ten and not more than seventeen days before the time at which the petition is noticed to be heard." The Petition was noticed to be heard on June 1, 2023; and the affidavit of service for Christopher shows that substituted service was made on May 19, 2023 and a copy of the papers was mailed via regular mail and certified mail on May 20, 2023. Service on Christopher was therefore in compliance with the timeline from RPAPL § 733 (1).
Respondents' fourth affirmative defense-that petitioner failed to file the proof of service required by RPAPL § 735-has already been addressed by this Court as part of its discussion of respondents' motion to dismiss.
Respondents' fifth and sixth affirmative defenses state that petitioner has failed to meet the requirements of RPAPL § 741 as the "petition fails to adequately describe the subject premises" and the "petition is not property verified" (NYSCEF Doc No. 12). However, the Petition adequately describes the premises from which removal is sought as "all rooms at 67 Sycamore Circle, Stony Brook, NY 11790" and refers to and includes the certified referee's deed for the premises with a Schedule A - Property Description. Such description is "accurate enough to allow a marshal to locate the premises without additional information" (Nauth v Nauth, 42 Misc.3d 672, 674 (Civ Ct, Bronx County 2013]) and is in compliance with RPAPL § 741 (3). As to the verification argument, the Petition was verified by petitioner's attorney and RPALP § 741 allows a petition to be verified by an attorney.
Accordingly, petitioner's motion to dismiss the Petition is denied and the cross motion by petitioner for summary judgment is granted.
The foregoing constitutes the decision and Order of the Court.