People v J & L Landscaping, Inc.

[*1] People v J & L Landscaping, Inc. 2006 NY Slip Op 51480(U) [12 Misc 3d 1187(A)] Decided on July 28, 2006 Criminal Court Of The City Of New York, Kings County Nadelson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2006
Criminal Court of the City of New York, Kings County

The People of the State of New York,

against

J & L Landscaping, Inc.



2006SK019404



Counsel for the People: Sheryl Neufeld

Counsel for the Defendant: Morton Grossman

Eileen N. Nadelson, J.

Motion to Dismiss

Corporate Defendant, by its counsel, moved to dismiss the instant criminal action based on a lack of personal jurisdiction and lack of subject matter jurisdiction.

The action was commenced by the service of a summons, issued by the Department of Buildings, on the New York Secretary of State as agent for service of process on the corporate Defendant. Defendant argues that this service is improper because the Secretary of State was not served with duplicate copies as required under the Business Corporation Law section 306(b)(1), and there is no certificate of mailing a copy of the summons to Defendant. Defendant further alleges that the summons itself is invalid because the Department of Buildings lacked subject matter jurisdiction because the section of the Administrative Code upon which the summons is predicated requires a building to be situated on the subject premises and no such structure appears on the land in question.

The procedures for service to secure the presence of a corporate defendant in a criminal action is detailed in section 600.10(a) of the Criminal Procedure Law. This statute states that service may be effectuated by the issuance and service of a summons or an appearance ticket by delivery to any agent of such corporation authorized by appointment or by law to receive service of process. Personal service of an appearance ticket upon the Secretary of State pursuant to Business Corporation Law section 306 satisfies the requirements of CPL 600.10(1) for securing the attendance of a corporation for purposes of commencing a criminal action and otherwise satisfies due process requirements. People v. New York Paving, Inc., 155 Misc, 2d 934, 591 [*2]NYS2d 318 (Queens County 1992). Therefore, if the Secretary of State was served in accordance with the provisions of section 306 of the BCL, the instant Defendant is deemed to be properly served.

Section 306(b)(1) of the BCL states:

Service of process on the secretary of state as agent of a domestic or authorized

foreign corporation shall be made by personally delivering to and leaving

with the secretary of state of a deputy, or with any person authorized to

receive such service, at the office of the department of state in the city of

Albany, duplicate copies of such process together with the statutory fee

which shall be a taxable disbursement. Service of process on such

corporation shall be complete when the secretary of state is so served.

The secretary of state shall promptly send one of such copies by certified

mail, return receipt requested, to such corporation, at the post office

address, on file in the department of state, specified for the purpose.

In the affidavit of service submitted and filed by the People, the affiant fails to state that he served duplicate copies of the summons on the secretary of state's office, and there is no evidence that a copy of the summons was ever mailed to Defendant. Consequently, at first blush, it would appear that the People failed to meet the requirements of BCL section 306, and that Defendant's motion should be granted.

However, once Defendant, by its attorney, appeared to contest jurisdiction, the issue of whether the corporation was properly served with process is rendered irrelevant. People v. Benjamin Development Co., Inc., 155 Misc 2d 528, 589 NYS2d 144 (Queens County 1992). The basic prerequisites for jurisdiction in a criminal matter are the proper filing of the accusatory instrument, securing the appearance of the defendant, and the arraignment of the defendant. CPL 600.10 provides that a corporation shall appear only through an attorney and further provides that an appearance ticket or a summons shall be delivered to one of the officers or agents of the corporation designated in the statute; however, "there exists no authority in the CPL for a special or limited appearance by an individual or a corporation solely to contest jurisdiction." Id. So long as Defendant appears, the manner and means by which it is brought before the court is immaterial and of little importance; any defects in the service cannot be a jurisdictional impediment to prosecution. Id. citing People v. Sessa, 43 Misc 2d 24 (New York County 1964) and People v. Byfield, 131 Misc 2d 884 (New York County 1986).

Therefore, based on the foregoing, Defendant's motion to dismiss based on improper service must be denied.

Defendant's second contention, that the Department of Buildings improperly issued the summons because it lacked subject matter jurisdiction, must also be denied.

The propriety of an administrative order issued by the city's Commissioner of Buildings [*3]may not be collaterally reviewed in the criminal prosecution for its disobedience. People v. Kaufman, 129 Misc 2d 1052, 498 NYS2d 663 (App. Term 1st Dept. 1985). Such review may be sought only by a direct appeal of the order to the Board of Standards and Appeals, as prescribed by the New York City Charter section 666(6). Id.; People v. New York Racing Association and Barterama & Barterama, Inc., 135 Misc 2d 453, 516 NYS2d 387 (App. Term 2d Dept. 1986). See also People v. Portnoy, 1988 NY Misc. Lexis 206 (Bronx County 1986). Consequently, any challenge to the jurisdiction of the Commissioner of Buildings may only be raised by administrative appeal.

This constitutes the decision and order of the court.

Dated: July 28, 2006 _____________________________

Eileen N. Nadelson, J.C.C.