Opinion
L T 107951/07.
Decided July 2, 2008.
Gutman Mintz et al., Attorneys for Petitioner, By: Uygar C. Konur, Esq., New Hyde Park, New York.
The Legal Aid Society, Brooklyn Office for the Aging, Attorneys for Respondent, By: Diane E. Lutwak, Esq., Brooklyn, NY.
This summary holdover proceeding was commenced by ZOT, INC., ("Petitioner") and seeks to recover possession of Apartment 5E, at 350 Empire Boulevard, Brooklyn, New York, 11217 ("Subject Premises") from the rent-stabilized tenant of record, RUBY WATSON ("Respondent") and her daughter BARABARA WATSON ("Respondent's Daughter"), based on allegations that Respondent has created or allowed a nuisance in the subject premises.
PROCEDURAL HISTORY
This proceeding was commenced by issuance of a 10 Day Notice to Terminate, dated November 14, 2007 ("Predicate Notice"), terminating Respondent's tenancy as of December 3, 2007. The Notice of Petition and Petition were served on December 27, 2007, by delivery to Respondent's Daughter, a person alleged to be of suitable age and discretion, residing at the subject premises.
The proceeding was initially returnable on January 3, 2008 and on Respondent's request to obtain counsel, was adjourned to January 23, 2008. On January 23, 2008, Respondent appeared and advised the Court that she qualified for the Assigned Counsel Program, and the proceeding was further adjourned to February 26, 2008, for counsel to appear.
On February 26, 2008, The Legal Aid Society, Brooklyn Office for the Aging, appeared on behalf of Respondent, and on or about March 13, 2008, filed an answer with counterclaim on her behalf. The proceeding was adjourned over the next five court dates, by consent of both attorneys, for settlement discussions and motion practice.
Petitioner moves the Court for an order deeming the Notice of Petition, Petition, and Affidavit of Service for the Petition timely filed nunc pro tunc. Respondent cross-moves for an order dismissing the proceeding pursuant to RPAPL § 733(1) and § 735(2)(b). The motions are consolidated herein for disposition.
Petitioner's counsel filed a "Motion to Strike", however, at oral argument, the parties stipulated that said papers would only be considered in further support of Petitioner's application for nunc pro tunc relief, and in opposition to Respondent's motion for dismissal.
Does the late filing of the affidavit of service deprive the Court of personal jurisdiction over Respondent or subject matter jurisdiction over the proceeding, or is it a de minimis error subject to correction?
RPAPL § 733(1) provides "Except as provided in section 732,
relating to a proceeding for nonpayment of rent, the notice of petition and petition shall be served at least five and not more than twelve days, before the time at which the petition is noticed to be heard."
RPAPL § 735(2)(b) provides that when service is made by any method other than personal delivery to the Respondent "such service shall be complete upon the filing of proof of service."
Petitioner served the Petition herein, by substituted service on Respondent's Daughter. The service was made on December 27, 2007 at 10:12 a.m. . A mailing was also done on December 27, 2007. However, the proof of service was not filed until January 2, 2008. The Petition was noticed to be heard on January 3, 2008.
Proof of service should have been filed no later than December 31, 2007, which would have been within three business days from the mailing on December 27, 2007, as required by RPAPL § 735(2), and would have satisfied the requirement that service be completed five days before the return date, as the fifth day prior to the return date was December 29, 2007, a Saturday, and the next business day on which proof of service could have been filed was December 31, 2007. The filing on January 2, 2008 was two days late, and one business day after December 31, 2007.
Respondent argues that service was thus not "complete" five days before the return date of the petition, and that this delay in filing the proof of service mandates dismissal of the proceeding, in accordance with RPAPL 733(1).
Petitioner argues that the late filing of the affidavit of service is de minimis, and that such defect is subject to correction by motion asking that the Court deem the affidavit of service timely filed nunc pro tunc. Petitioner's request for relief is supported by recent appellate case law in the Second Department, including, but not limited to Friedlander v. Ramos, 3 Misc 3d 33 (2004), wherein The Appellate Term affirmed a Civil Court ruling granting a landlord's motion to deem a late filed affidavit of service timely nunc pro tunc.
Respondent argues however that Friedlander, and other cases with similar holdings are no longer valid law, because Friedlander relied in part on § 411 of the New York City Civil Court Act ("NYCCCA"), which has since been amended. Prior to September 8, 2005, § 411 of NYCCCA provided that where a petition or notice of petition had not been filed timely, the court could order the filing thereof nunc pro tunc. . The current provision of NYCCCA § 411 has eliminated such language.
However, Respondent's argument ignores the reasoning behind the statutory amendment, and other amendments to the NYCCCA, which were made at the same time. The new § 411 of the NYCCCA eliminated the provision for nunc pro tunc relief, because the relief was no longer necessary, based on other amendments made to the NYCCCA at the same time. The amendments, taken as a whole, were aimed at the conversion of the commencement of cases in New York City Civil Court, from a system of commencement by service to a system of commencement by filing. See e.g. New York Sponsors Memorandum, 2005 A.B. A7255B ( purpose of the bill is "(t)o require the purchase of an index number beforeserving the summons and complaint, notice of petition and petition, or order to show cause and petition in an action or proceeding in the New York City Civil Court).
The new amendments collectively form Chapter 452 of the NYCCCA, and eliminate any time deadline for the filing of proof of service. § 409 of NYCCCA was amended from requiring that proof of service be filed within a specific time frame, to simply a requirement that proof of service be filed. By its explicit terms § 409(a) applies to petitions and notices of petition in special proceedings, and is no less applicable to summary proceedings then previous provisions of Chapter 452 of the NYCCCA.
To the extent that there is a conflict between the time requirements of NYCCCA and RPAPL, the provisions of the NYCCCA, which are intended specifically for proceedings in New York City Civil Court, as opposed to statewide provisions of the RPAPL, prevail.
. . . where there is a conflict between the general provisions of the RPAPL and specific provisions of statutes regulating . . . trials in local courts, the specific provisions will be taken as a statutory exception to the general provisions and will prevail. (3 Rasch, New York Landlord and Tenant, Summary Proceedings, § 1339 [2d ed, 1971].)
319 West 48th Street Realty Corp. v. Slenis, 117 Misc 2d 259, 260-61 (Civ.Ct., NY Co., 1982); Barrett v. Bartels, N.Y.L.J., Aug. 23, 1990, p. 18, col.5 (Civ.Ct., NY Co., 1990); Washington v. Palanzo, 192 Misc 2d 577 ((App. Term, 2nd Dept., 2002); Metropolitan Transportation Authority v. Terminal Drago Shine Stands, Inc., 119 Misc 2d 10 (1983)
Nor does the NYCCCA require that proof of service be filed in order for Civil Court to have jurisdiction over a party to a special proceeding. NYCCCA § 400(2) provides that jurisdiction is acquired over a party to a special proceeding by service upon such party of the notice of petition and petition. As noted by Professor David Siegel, there is no basis to find that the repeal of the nunc pro tunc provision of NYCCCA § 411 makes the failure to timely file proof of service a jurisdictional defect. In fact, quite the opposite is true.
The amendment of § 409(a) strikes out all of the time limits on when proof of service must be filed and merely makes a general statement requiring the filing, with no time limit imposed. There should therefore be no tension about the filing of proof of service.
. . . . . . .
Even under the old law, which imposed specific and short time limits on the filing of proof of service, another provision — the old § 411 that's now replaced by the new one — allowed the court to permit a nunc pro tunc filing establishing that the timely filing of proof of service was not a jurisdictional requirement even under prior law. That should be the case a fortiori under the new Chapter 452, which repeals the old § 411 as unnecessary and enacts a new § 411 in its place.
Siegel's Practice Review, August 2005, 164 Siegel's Prac. Rev. 1, Part 1 ( emphasis added).
In a later segment, Professor Siegel opines that the new Chapters 452 while addressed to special proceedings, was not intended to include summary proceedings, but cites no authority exists for such an interpretation. See 165 Siegel's Prac. Rev.2 (September 2005). This is perplexing given citations to Siegel, previous to the amendment, where he opined that special proceedings included summary proceedings, and that the statute was "aimed primarily at the summary proceeding." Friedlander v. Ramos, 3 Misc 3d 33 (App. Term, 2nd 11th, 2004) citing Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 29A.
Moreover, in reviewing the cases addressing these issues, there is a distinction to be made between a true violation of RPAPL § 733(1), where acts other than filling proof of service necessary to acquire jurisdiction over the respondent are not complete five days before the petition is noticed to be heard, and cases, such as the case at bar, where all acts for service were timely made in accordance with RPAPL § 733(1), but the affidavit of service was filed late.
The cases relied upon by Respondent in seeking dismissal, primarily are cases where acts other than the filing of the proof of service were late, and thus the defect becomes jurisdictional rather than de minimis, as the tenants in those proceedings were prejudiced by insufficient notice under the statute. For example, in 445 East 85th Street LlC v. Phillips, 2003 WL 22170112, 2003 NY Slip Op. 51270(U) (Civ. Ct., NY Co., Lebovits, J.), which reasoning Respondent urges this Court to adopt, the Court specifically held:
This court holds no brief about whether late filing is a nonjurisidictional defect that a nunc pro tunc order can remedy. The jurisprudence is unanimous that it is, because failing to file proof of service timely is a technical defect, a mere irregularity that causes no prejudice.
See e.g. Koslowski v. Koslowsi, 251 AD2d 294, 295 [2d Dept 1998, mem]; Ward v. Kaufman, 120 AD2d 929, 931 [4th Dept 1986, mem]; Helfand v.Cohen, 110 AD2d 751, 752 [2d Dept 1985, mem]; The ReporterCo., Inc. v. Tomicki, 60 AD2d 947, 947 [3d Dept 1978, mem]; Tasman v.Esposito, NYLJ, Nov. 21, 1990, at 27, col 1 [App Term, 2d Dept, 9th 10th Jud Dists, mem]; Metro Spanish Food Wholesalers, Inc. v. Jetro Cash-and-Carry Entrps., 137 Misc 2d 54, 58 [Civ Ct, Bronx County 1987], appeal dismissed 139 Misc 2d 208 [App Term 1st Dept, 1988, per curiam]; Eiler v. North, 121 Misc 2d 539, 542 [Delaware County Ct 1983]; Metropolitan Trans. Auth. v. Terminal Drago Shine Stands, Inc., 119 Misc2d 10, 15 [Civ Ct, NY County 1983]; Billglo Corp. v. Haskins, 111 Misc2d 512, 514 [Nassau Dist Ct 1981]; Revelstoke Props., Inc. v. BeamontNeckwear, 114 Misc 2d 545, 547 [Civ Ct, NY County 1982].
Id. ( Emphasis added). However, the Court denied the relief based on what it deemed strict construction required by the Appellate division, First Department, and because nunc pro tunc relief was sought only on re-argument.
Where the only alleged defect in service is the late filing of proof of service, the error is de minimis and may be excused. Revelstoke Properties, Inc. v. Beaumont Neckwear, Inc., 114 Misc 2d 545, (Civ.Ct., NY Co., 1982, Saxe, J.)( where all acts necessary to complete service, other than the filing of proof, were timely dismissal of proceeding would be exaltation of a technicality); Fame Company v. Sandberg, 9 Misc 3d 1115(A), (Civ.Ct., NY Co., 2005, Capella, J.); Eiler v. North, 121 Misc 2d 539 (1983)( filing of proof of service not a prerequisite to the obtaining of jurisdiction which is effected in summary proceedings by compliance with RPAPL 735 (1 )); Paracha v. County of Nassau, 228 AD2d 422 (2nd Dept., 1996)( actions otherwise properly commenced cannot be defeated simply by reason of belated filing of proof of service, court may extend time to comply absent prejudice); Jamal Estates v. Crockwell, 113 Misc 2d 548 (App. Term, 1st Dept, 1982)( failure to file proof of service is plainly not a jurisdictional defect under case law); Toulouse v. Chandler, 5 Misc 3d 1005(A) (2004) ( absent prejudice late filing of proof of service subject to correction by court order).
The Court in Phillips, further held that Berkeley Associates Co. v. Di Nolfi, 122 AD2d 703 (1st Dept., 1986) implicitly overruled the holding in Jamal Estates v. Crockwell, supra . However, this Court finds that the two rulings are not inconsistent. While it is clear that late filing of proof of service is a de minimis defect subject to cure as found in Jamal, it is equally clear that where a filing is late, a default judgment is not properly entered, and such judgment will not lie as held in Berkeley Associates. If the proceeding is otherwise proper, and Respondent has appeared, prior to the entry of a judgment, the late filing is excusable, however, absent strict compliance with the statute, a default judgment is not properly entered and subject to vacateur. See also Parcha v. County of Nassau, 228 AD2d 637 (2nd Dept., 1996)( while belated filing of proof of service is defect subject to correction, no entitlement to a default judgment lies absent filing of proof of service).
Summary Proceedings, while creatures of statute, are not jurisdictionally defective as a result of such a de minimis error, nor does such an error deprive this court of subject matter jurisdiction. As noted by the Appellate Division, in Lanz v. Lifrieri, 104 AD2d 400 (2nd Dept., 1984):
Although earlier nisi prius cases indicated that petitions in summary proceedings should be strictly construed, we adopt the reasoning of a recent trend of cases which treat summary proceedings the same as any other type of civil case and which refuse to consider de minimis variations from strict compliance as jurisdictional defects.
Id. at 401. ( Citations omitted).
In the case at bar, there is no violation of RPAPL § 733(1). Respondent was served with the papers, and all steps required to effect that service, other than the filing of the affidavit of service, were properly effectuated six days prior to the return date. Therefore, the objective of RPAPL § 733 (1) has been met.
There is only a violation of RPAPL § 735(2), which as noted above is not a fatal defect and is subject to cure by order of the Court.
Although not discussed in length in the papers of either party, the Court notes that The Appellate Division, First Department has recently issued a decision supporting Respondent's position that a late filing requires dismissal. In Riverside Syndicate Inc., v. Saltzman, 49 AD3d 402 (1st Dept., 2008), the Appellate Division reversed an Appellate Term decision, Riverside Syndicate, Inc. v. Saltzman, 15 Misc 3d 138(A), (App. Term, 2nd Dept., 2007.), which in turn had reversed a Civil Court decision dismissing the petition based on a late filing, Riverside Syndicate Inc., v. Saltzman, (Index No. 570565/06, January 20, 2006, Civil Ct., NY Co., Schreiber, J., n.o.r.).
The Civil Court decision had dismissed the petitions based on the fact that the affidavit of service was filed four days prior to the initial return date in the proceeding, instead of five days. It appears that all other service requirements had been timely met. The Appellate Term held in pertinent part ". . . landlord's one day delay in filing proof of service of the petition did not require dismissal of these otherwise properly commenced holdover proceedings ( see Jamal Estates v. Crockwell, 113 Misc 2d 548 (1982); see also Friedlander v. Ramos, 3 Misc 3d 33 (2004) ." Riverside Syndicate Inc., v. Saltzman, 15 Misc 3d 138(A).
The Appellate Division reversed the Appellate Term, and dismissed the petitions holding:
Landlord failed to "complete" service of the notice of petitions and petitions by filing proof of service (RPAPL 735[2][b]) at least five days prior to the date the petitions were noticed to be heard (see RPAPL 733[1]). 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." ( Berkeley Assoc. Co. v. Di Nolfi, 122 AD2d 703, 705, 505 NYS2d 630 [1986], lv. dismissed 69 NY2d 804, 69 NY2d 804, 513 NYS2d 386, 505 NE2d 951 [1987]; MSG Pomp Corp v. Doe, 185 AD2d 798, 586 NYS2d 965 [1992]).
Id.
The Appellate Division decision in Saltzman, 49 AD3d 402, does appear to implicitly overrule the decision in Jamal, supra, which the Appellate Term had expressly relied on below (Saltzman. 15 Misc 3d 138(A)). The Appellate Term in Jamal had previously held that the late filing did not affect personal jurisdiction over the Respondent, holding:
We have repeatedly noted that the term jurisdictionally defective has been used loosely and inappropriately. Jurisdiction may be divided into subject matter and personal jurisdiction. Personal jurisdiction requires notice and an opportunity to be heard. Notice is given when a person is served with process and informed of the date and time that he is required to appear and answer. While the filing with th court is said to "complete" the service, the notice to the respondent is in fact effected by the affixing of process and the further act of multiple mailings.
Id.
Thus The Jamal Court held that the only jurisdictional issue, personal jurisdiction, was not affected by the late filing. But the Appellate Division in Saltzman, 49 AD2d 402, held that the Court lacked "jurisdiction" as a result of the late filing. While not specified the lack of "jurisdiction" can not be subject matter jurisdiction, which is conferred on this Court by NYCCCA § 110, but must refer to the personal jurisdiction over respondent. The Appellate Decision in Saltzman relied primarily on MSG Pomp Corp. v. Doe,185 Misc 2d 372 (1st Dept.). However, historically when cited, MSG Pomp has been cited as authority for a holding that there is a lack of subject matter jurisdiction.
On review of landlord-tenant proceedings, this court has uniformly applied the rule that the failure strictly to comply with the statutes governing summary proceedings deprives the court of jurisdiction and mandates dismissal. "[A] summary proceeding is a special proceeding governed entirely by statute [citations omitted] and it is well established that there must be strict compliance with the statutory requirements to give the court jurisdiction [citations omitted]." ( Berkeley Assocs. Co. v. DiNolfi, 122 AD2d 703, 705, 505 NYS2d 630, quoting Goldman Bros. v. Forester, 62 Misc 2d 812, 814-815, 309 NYS2d 694; see, Matter of Blackgold Realty Corp. v. Milne, 69 NY2d 719, 721, 512 NYS2d 25, 504 NE2d 392; Giannini v. Stuart, 6 AD2d 418, 178 NYS2d 709.)
Id. at 798. It is this holding which has been disavowed in the Second Department, where it has been held that the case should be limited to its facts, and not otherwise followed. See eg Birchwood Towers No. 2 Associates v. Schwartz, 98 AD2d 699 (2nd Dept.,1983).
As noted in Paikoff v. Harris, 185 Misc 2d 372, (App. Term, 2nd 11th Dept.,1999), "(a)t the outset, we note that MSG Pomp Corp. v. Doe and Giannini v. Stuart whatever their continued validity in the First Judicial Department, are not controlling in this Department." at 375-376. While the issue at play in Paikoff was the failure to allege the correct regulatory status of the subject premises, the holding that a non prejudicial error is not jurisdictional, and subject to correction remains applicable to the facts in the case at bar.
In 17th Holding LlcCv. Rivera, 195 Misc 2d 531 (App. Term, 2nd Dept., 2002), the Appellate Term again noted that in light of Court of Appeals decisions addressing the improper use of the term jurisdiction, MSG Pomp Corp., was held limited to the facts of that specific case due to equitable consideration involved in that proceeding, and Clarke v. Wallace Oil Co., 284 AD2d 492 (2001) which cited both MSG Pomp and Berkeley Assocs., "must be limited to its own facts" Rivera at 531. Once again the Rivera court emphasized the issue of prejudice holding that "(i)n the absence of any demonstrable prejudice to tenant . . ." the papers were to be deemed amended and the defect cured." and rejected the notion that a failure to strictly comply with the statutes governing summary proceedings deprived the court of jurisdiction.
This Court can only conclude that the Appellate Division decision in Saltzman, 49 AD3d 402, thus signals a division between the First Department and Second Department on the issue of whether late filing of the affidavit of service is a "jurisdictional" defect requiring dismissal of the proceeding, or a de minimis error subject to correction by court order in the absence of prejudice.
Saltzman provides that the late filing of the affidavit deprives the court of jurisdiction, and that the issue of prejudice is irrelevant, because absent strict compliance with the statute, the proceeding must be dismissed. Whereas the Second Department has consistently indicated that where there is a technical defect, that does not prejudice any party, summary proceedings, just as any other type civil litigation should not exalt technicalities over substance.
The Second Department cases continue to focus on the issue of demonstrable prejudice to the Respondent. See eg Friedlander v. Ramos, supra . In the case at bar there is less prejudice to the Respondent than in most of the other cases cited herein. Most cases cited herein involve fact patterns where service was made by conspicuous place service, but in the case at bar the papers were made by delivery to a person of suitable age and discretion, Respondent's daughter, who is also a named party to this proceeding. Thus there is less concern about insufficient notice then in cases where no one was available to receive the papers from the process server. Moreover, Respondent has not claimed that the late filing has caused her any prejudice.
CONCLUSION
In conclusion, Respondent's motion to dismiss the petition based on the late filing of the affidavit of service of the petition is denied. The Court finds that the late filing of the affidavit of service neither deprives the Court of personal jurisdiction over Respondent, nor subject matter jurisdiction over this proceeding. As discussed above the new provisions of the NYCCCA contain no time deadline for the filing of the affidavits of service (NYCCCA § 409(a)), and provide that personal jurisdiction is acquired over a party by service of the notice of petition and petition, without reference to the filing of proof of service. NYCCCA § 400(2).
Moreover, Petitioner's motion that the affidavits of service be deemed filed timely nunc pro tunc is granted pursuant to CPLR § 2001 which provides:
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.
This provision was recently amended effective August 2007 to specifically include provisions for irregularities in the filing of the papers necessary to commence cases.
The stated purpose behind the amendment is to explicitly give courts the discretion to correct or ignore mistakes or omissions in the process of filing commencement papers if such errors have caused no prejudice to the opposing party. The intent of this "sensible amendment", made clear in the Sponsor's Memorandum, is to "overrule the judicial decisions, chronicled over the years in that have treated numerous types of nonprejudicial filing errors as jurisdictional." See Practice Commentaries to CPLR 304, Vincent C. Alexander, C304:3, Jurisdictional Implications.
Similarly, CPLR § 2004 provides in pertinent part:
Except where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.
CPLR § 2004 has been found to be properly used to excuse the late filing of proof of service. Weininger v. Sassower, 204 AD2d 715 (2nd Dept., 1994).
Based on the foregoing the Court grants Petitioner's motion to deem the affidavit of service in this proceeding timely filed nunc pro tunc, and denies Respondent's motion for dismissal pursuant to RPAPL 733(1) and RPAPL 735(2). The case shall be restored to the calendar for trail on July 31, 2008 at 9:30 a.m. in Room 507.
This constitutes the decision and order of this Court.