Abakporo v Gardner

[*1] Abakporo v Gardner 2008 NY Slip Op 52574(U) [22 Misc 3d 1101(A)] Decided on December 5, 2008 Civil Court Of The City Of New York, Kings County Gonzales, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 5, 2008
Civil Court of the City of New York, Kings County

Theophine Abakporo, Petitioner,

against

Cora Gardner, Respondent.



75655/08

Cheryl J. Gonzales, J.

Petitioner commenced this holdover proceeding on or about June 11, 2008 seeking possession of apartments 3R and 4F at 35A Prospect Place in Brooklyn. In a notice dated April 25, 2008, petitioner terminated respondent's month to month tenancy effective May 31, 2008. This matter first appeared on the calendar on June 25, 2008. Respondent defaulted on this appearance, and the matter was adjourned to July 15, 2008 for inquest. The court notified respondent of the second court date by mailing a postcard to respondent. Respondent, appeared by counsel on July 15, 2008, and interposed a verified answer asserting five defenses. Subsequently, respondent moved for an order dismissing the petition based on her claim that petitioner failed to comply with the filing requirement under RPAPL §733(1). In the alternative, respondent requested a traverse hearing.

Respondent contends that petitioner's filing of the affidavits of service of the petition and notice of petition on June 23, 2008, which was two days prior to the court date scheduled on June 25, 2008, was untimely and prejudicial to respondent. Respondent submitted a copy of the postcard which reflects that it was mailed on June 23, 2008. Petitioner filed an affidavit of service for each of the apartments. Both affidavits reflect that attempts were made to serve respondent on June 13, 2008, June 16, 2008, June 17, 2008 and on June 18, 2008 when conspicuous place service was effected, and copies of the petition and notice of petition were mailed by certified and regular mail on June 19, 2008. Respondent alleges that she only received copies of the papers which were sent by certified mail, and they were delivered on June 30, 2008 after the initial court date.

The late filing of the papers, less than five days before the court, caused the postcard to be mailed only two days before the court date. Respondent asserts that if proof of service had been timely filed, she may have received the postcard and would not have defaulted on the first court date. Respondent argues that the precedent set in Riverside Syndicate, Inc. v. Saltzman, 49 AD3d. 402 (1st Dept. 2008), in which the court upheld the dismissal of a summary proceeding based on petitioner's failure to timely complete service pursuant to RPAPL§735(2)(b), is controlling authority based on the doctrine of stare decisis, as it is the only appellate division case to rule on [*2]this issue.

In opposition, petitioner claims that service was complete upon delivery to the post office, and therefore the operative date for the completion of service was June 19, 2008.Further, petitioner

contends that respondent cannot demonstrate prejudice based on her own failure to claim her mail at the post office.

Contrary to petitioner's assertion that service is complete upon delivery to the post office, both NYCCA §410 and RPAPL§735 (2)(b) provide that service is complete upon filing when conspicuous place service is effected pursuant to NYCCA § 402(b) and RPAPL§735(1).Further, RPAPL§733(1) requires that the petition be served at least five days prior to the return date and no more than twelve days prior to the court date. The petition was noticed to be heard on June 25, 2008, and pursuant to RPAPL§735(2)(b) service in this case was untimely completed on June 23, 2008 when the affidavit of service was filed.

Respondent arguesthat she was prejudiced because she never received the papers in time to appear in court, and petitioner's short filing did not allow sufficient time for the postcard mailed by the court to be received. In Zot, Inc. v. Watson, 20 Misc 3d. 1111(A), Judge Kraus granted petitioner's motion to deem the affidavit timely filed Judge Kraus concluded that the short filing of the affidavit of service was de minimus, and the violation of RPAPL§735(2) was not fatal. However, the facts in that case differ as service was effected by substituted service in Zot, supra and not by conspicuous place service as was done in this case. The respondent in Zot, supra, was also never in default, and, unlike the respondent in this case, did not claim to be prejudiced. The timely filing of the affidavit service may have facilitated respondent's receipt of the postcard and averted her default, and allowed respondent time to fully evaluate her defenses, and the propriety of a defense based on improper service, (see Late Filing: Basis for Dismissal or Correctable, Warren A. Estis and William J. Robbins, NYLJ, October 1, 2008, pg. 5, col. 8.)

Therefore, this court finds that pursuant to RPAPL§735 (2) service was not complete until June 23, 2008 , and respondent was granted less than five days notice of the court date as required under RPAPL§ 733(1). Respondent was clearly prejudiced by petitioner's short filing, and the petition must be dismissed. In addition, respondent correctly asserts that under Mountain View Coach Lines v. Storms, 102 A. D.2d.663 (2nd Dept. 1984), this court is bound by the precedent set forth by theFirst Department in Riverside Syndicate, supra which is the only decision on this issue which was made by any court of statewide jurisdiction.

Based on the foregoing, respondent's motion is granted and the petition is dismissed. [*3]

This constitutes the decision and order of this court.

Dated: December 5, 2008___________________________

Cheryl J. Gonzales, JHC