New York City Hous. Authority-Taylor Wythe Houses v Spitzer

[*1] New York City Hous. Authority-Taylor Wythe Houses v Spitzer 2006 NY Slip Op 51085(U) [12 Misc 3d 1166(A)] Decided on June 6, 2006 Civil Court, Kings County Heymann, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 6, 2006
Civil Court, Kings County

New York City Housing Authority-Taylor Wythe Houses, Petitioner,

against

Chana Spitzer, JOHN DOE and JANE DOE, Respondents.



15211/05

George M. Heymann, J.

In this licensee holdover proceeding, commenced by the New York City Housing Authority [NYCHA], the respondent, by Order to Show Cause [OSC][FN1], seeks an order staying any further proceedings in this matter pursuant to CPLR § 2201[FN2] and dismissal of the action.[FN3]

In her Verified Answer, the respondent denies that proper service was effectuated regarding the Notice of Petition and Petition and the Notice to Quit, and as a result the matter was set down for a traverse hearing. The respondent now argues that there is no need to conduct a traverse hearing on the ground that the process server in this proceeding was not licensed and therefore dismissal is warranted. [*2]

Paragraph 6 of the Verified Answer reads as follows: The affidavits of service of the Notice to Quit and Notice of Petition and Petition are defective and insufficient on their face in that the affiant(s) neither allege a process server license number nor a basis for any exemption from the requirements of the process server laws as set forth in NYC Administrative Code §20-403 and 6 RCNY §2-232, nor any other basis to allow such person to serve process. In fact, upon information and belief, the persons who allege to have effectuated service herein are, upon information and belief, not licensed, are not exempt from the process server laws and record keeping requirements, and have served more than five processes within the last twelve months. As such the allegations of the process server are incredible per se and the proceeding should be dismissed.[FN4]

In response to the allegation that the Notice to Quit and the Notice of Petition are defective and insufficient on their face because the process server was not properly licensed, the petitioner avers that said process server was exempt from such requirement as a government employee. Arguing to the contrary, the respondent states that NYCHA is not a government agency and therefore its employees are not exempt from the rules and regulations pertaining to the licensing of process servers.

QUESTIONS PRESENTED

The issues to be determined by the Court are whether it was necessary for service of the requisite papers herein be made by a licensed process server, which concededly they were not, and whether the failure to do so invalidates the service of process if otherwise properly effectuated.

RELEVANT STATUTES

NYC Administrative Code, Title 20. Consumer Affairs, Chapter 2. Licenses, Subchapter 23. Process Servers §20-403 License required. It shall be unlawful for any person to be employed as or perform the services of process server without a license therefore. §20-404 Definition. a. A process server is a person engaged in the business of serving or one who purports to serve or one who serves personally or by substituted service upon any person, corporation, governmental or political subdivision or agency, a summons, subpoena, notice, citation or other process, directing the apppearance or response to a legal action, legal proceeding or administrative proceedings. b. For the purposes of this subchapter the service of five or more process in any one year shall be deemed to constitute doing business as a process server.[*3] §20-405 Exceptions. a. The provisions of this subchapter shall not apply to any employee of any city, state or federal department or agency, who is acting within the scope of his or her employment.

General Business Law [GBL] §89-bb 1. A process server' is a person, other than an attorney or party to an action on his own behalf, who: (a) derives income from the service of papers in an action; or (b) has effected service of process in five or more actions or proceedings in the twelve month period immediately preceding the service in question. A person who serves interlocutory papers upon an attorney or who serves papers on behalf of a federal, state or local governmental agency in the course of his employment by such agency shall not be deemed a process server within the meaning of this article by virtue of such service.

See, also, 6 RCNY §2-232

DISCUSSION

In the matter of Jacobowitz and Goldberger v. Greenstein and NYCHA, (Sup. Ct., Kings Co., Index No. 48374/03) an Article 78 proceeding completely unrelated to the case at bar, the attorney for the petitioners therein, who is the same attorney for the respondent herein, went to great lengths in an effort to convince the court that NYCHA was a state agency in order to seek attorney's fees for the petitioners pursuant to the NYS Equal Access to Justice Act (CPLR§ 8600, et. seq.). In that case, NYCHA argued that it was not a state agency for the purpose of said statute and respondent's counsel herein now seeks to rely on that position as warranting dismissal of this proceeding.[FN5]

While both parties take the opposite posture in the instant proceeding, as contrasted to those taken in Jacobowitz, supra, since it is the respondent who is now raising the issue and challenging NYCHA's status as a governmental agency, counsel should be bound by his prior vociferous argument and should not, at this juncture, be permitted to use it as both a sword and a shield. The respondent asserts that the "petitioner cannot escape the fact that it promoted two, diametrically opposed arguments on the same issue... NYCHA can't have it both ways: since it argued that it is NOT a federal, state or local governmental agency/department in a proceeding predating the instant case, it is respectfully submitted that NYCHA is stuck with that argument ...". (Reply Affirmation In Support of Respondent's OSC, ¶ 8)

However, wanting it "both ways" is exactly what the respondent is attempting to do here, and she, too, cannot have it both ways.

If ever there was a situation of deja vu all over again, this case is certainly it.

In support of its position, the petitioner cites NYCHA (Taylor Wythe Houses v. Spitzer, (L&T # 910689/03, Chin, J.) which is exactly on point with the present matter since that case involved the identical issue between the identical parties as the case at bar. There the court determined that "NYCHA is a governmental agency as referred to in GBL § 89-b[b]". In that case, as here, the respondent's counsel raised the same argument as he previously did in [*4]Jacobowitz v. Greenstein, supra . In disposing of said argument, the court found that NYCHA's positions were not "inconsistent" and that "[t]he State of New York and NYCHA as a governmental agency are two distinct entities and are not necessarily one and the same." Clearly, by way of the instant OSC the respondent is attempting to apply the age old maxim: "If at first you don't succeed, try, try again".

Counsel for the respondents asserts that Judge Chin's decision has no precedential value in that the court ultimately dismissed the proceeding in a subsequent decision after a traverse hearing, and that, in any event, the court erred in its ruling. Regardless of the fact that the respondent in that case was successful in sustaining traverse after an evidentiary hearing, it does not preclude this court from considering Judge Chin's reasoning as persuasive authority by a court of concurrent jurisdiction, especially on an issue of law in contrast to an issue of fact. However, even if the Court were to accept the respondents' argument not to consider that holding, a similar finding was made in City of New York v. De Noble, 2005 NY SlipOp 51098U; 2005 NY Misc Lexis 1440. See, also, Metropolitan Transportation Authority v. Terminal Drago Shine Stands, Inc., 119 Misc 2d 10, 462 NYS2d 758.

As a final point on the subject, the Court of Appeals in Hernandez v. Hammons, 98 NY2d 735, 750 NYS2d 813, 780 NE2d 498, held, with reference to CPLR § 8600, supra, that the Equal Access to Justice Act did not provide for an award of attorney fees against a city agency as opposed to the state itself. Therefore, it is clear that the positions taken by NYCHA in both Jacobowitz, supra, and this case are not inconsistent.

Assuming, arguendo, that the petitioner's process servers are not exempt from being licensed, the licensing provisions of the NYC Administrative Code and GBL § 89-bb, supra, only provide for the licensing of process servers and the imposition of sanctions for noncompliance. "Nothing contained therein mandates the invalidation of process by an unlicensed process server. Otherwise valid service of process should not be made invalid by noncompliance with the Code provisions." Wellington Associates v. Vandee Enterprises Corp. 75 Misc 2d 330, 347 NYS2d 788, 792. Thus, this should not be the basis for dismissal if, at a traverse hearing, the petitioner can prove that service was otherwise properly effectuated notwithstanding that the process server was unlicensed.

Upon review of the statutes enunciated above, as well as the relevant provisions of the Public Housing Law [PHL], this Court finds that NYCHA is a state governmental agency exempt from the licensing provisions of the rules and regulations pertaining to process servers who "derive income" from the service of process.

Accordingly, the respondent's OSC, seeking an order staying any further proceeding in this matter and dismissing the action is denied and paragraph 6 of the Verified Answer is stricken.

This matter will be restored to the Court's calendar on June 22, 2006 to be referred to Pt. Ex for a traverse hearing.

This constitutes the decision and order of the Court.

Dated: June 6, 2006____________________

GEORGE M. HEYMANN, JHC Footnotes

Footnote 1: An identical OSC was also made in NYCHA (Independence Towers Houses) v. Klar, L&T # 13334/05 currently pending before the Court.

Footnote 2: Respondent's attorney inadvertently cited the wrong section of the CPLR [5519(c)] in the OSC seeking a stay. However, in his Reply Affirmation counsel requested that the error be amended nunc pro tunc to reflect § 2201 of the CPLR as the proper section upon which this motion is made.

Footnote 3: The instant OSC was brought two days prior to the previously scheduled date for the traverse hearing. The respondent contends that because this is an ex parte application which requires the court's permission to stay the proceeding and restore it to the calendar, the court found "merit" to its application or it would have denied it outright. (Reply Affirmation In Support of Respondent's OSC, ¶ 6) It should be noted, however, that the Judge who signed this OSC was a Civil Court Judge not assigned to this part on a regular basis and who did not have the benefit of being fully familiar with the history and intricacies of this particular proceeding. Thus, counsel's statement of "merit" is nothing more than self-serving bolstering. The mere fact that the OSC was signed does not in and of itself add any greater weight to the arguments presented therein than those submitted by the petitioner in opposition thereto. Moreover, counsel was aware that this identical issue between the same parties was denied in favor of the petitioner two years ago (May 25, 2004) under a different index number. (NYCHA (Taylor Wythe Houses) v. Spitzer, L&T 910689/03, infra)

Footnote 4: This identical issue is also raised by counsel in the pending matter of NYCHA (Taylor Wythe Houses) v. Weber, L&T # 12664/05.

Footnote 5:Neither party has indicated in their motion papers or memorandums of law how the Supreme Court ruled on this issue in Jacobowitz, supra.