Matter of Estate of Hutchins v Lauzon

[*1] Matter of Estate of Hutchins v Lauzon 2009 NY Slip Op 52358(U) [25 Misc 3d 1231(A)] Decided on November 19, 2009 Just Ct Of Town Of Niagara, Niagara County Murphy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2009
Just Ct of Town of Niagara, Niagara County

Estate of Leason J. Hutchins, Petitioner,

against

Diane Lauzon, Respondent.



09010039



Ted W. Janese, III, Esq., for Petitioner; Diane Lauzon (Pro Se), Respondent

Timothy P. Murphy, J.

The Petitioner (Estate of Leason J. Hutchins) having initiated summary eviction proceedings in this Court against the Respondent (Diane Lauzon) pursuant to §233 of the Real Property Law ("R.P.L.") and Article 7 of the Real Property Actions and Proceedings Law ("R.P.A.P.L."), praying for an eviction warrant and money judgment in the amount of $2,360.00; and Petitioner having appeared before this Court through counsel; and Respondent having appeared pro se; and this Court having carefully considered the prior recorded proceedings and pleadings in this action, as well as oral argument and written submissions from both parties; for the reasons that follow,

The Court finds that it lacks jurisdiction to preside over this action.

Procedural History

In support of its prayer for relief, Petitioner has filed a 30-Day Notice to Terminate Tenancy, dated October 28, 2008, with an Affidavit of Service, sworn to on October 30, 2008. A Notice of Petition, dated December 28, 2008, a Hold Over Petition, sworn to on December 29, 2008, a Non-Payment Petition, sworn to on December 30, 2008, and an Affidavit of Service, sworn to on January 2, 2009 (indicating a December 31, 2008 service), were filed as well. According to the Holdover Petition, the tenancy in question relates to a purported rental agreement commencing on February 1, 2007, and ending on December 31, 2008. The Respondent's residence is a manufactured home, located at 7400 Porter Road, Unit No.6, in Niagara Falls, New York.

A summary proceeding was held in this Court (by a different judge) on January 6, 2009. The Respondent at that time answered orally pursuant to R.P.A.P.L. §743, and interposed several jurisdictional defenses,[FN1] as well as a number of warranty of habitability and other claims. Following oral argument, the Court rejected (though at times implicitly) all of Respondent's claims, including her timely request for a jury trial. An eviction warrant was issued.

On March 5, 2009, respondent obtained a stay of the warrant from Niagara County Court pending appeal. By its June 1, 2009 Memorandum and Order, County Court reversed the judgment [*2]and vacated this Court's eviction warrant. A jury trial was ordered. Though acknowledging that Respondent had raised jurisdictional claims, County Court did not rule on this issue.

On June 25, 2009, both sitting justices for the Town of Niagara recused themselves from this matter. On July 2, 2009, County Court transferred the case to the Town of Lewiston. On August 14, 2009, the action was transferred back to the Town of Niagara. On September 21, 2009, I was assigned by the Administrative Judge for this Judicial District to preside over this action. Pre-trial conferences were held on October 29, 2009, and November 12, 2009, with December 17, 2009, tentatively set for jury selection. Both parties were given a full opportunity to argue (both orally and in writing) their positions regarding the Court's jurisdiction herein.

Jurisdictional Defects in the Pleadings

In the matter at bar, the Court is confronted with pleadings containing multiple jurisdictional defects. While County Court, in its well reasoned decision, ordered on June 1, 2009, that a jury trial be held, no court may legally conduct a proceeding without having jurisdiction to do so. In other words, the instant Decision and Order is consistent with the County Court mandate, as a trial court must have jurisdiction to "enter a valid judgment of any kind." See Gager, et al., v. White, et al., 53 NY2d 475, 487 (1981) (internal citations omitted); see also Royal Zenith Corporation v. Continental Insurance Company, 63 NY2d 975, 977 (1984) (recognizing that "[a] court is without power to render a judgment against a party as to whom there is no jurisdiction"). [FN2]

Though "manufactured" homes are primarily regulated by R.P.L. §233 (see generally Halpern v. Sullivan County, 171 AD2d 157, 159-160 [3d Dep't 1991]), our Legislature has determined that a summary eviction proceeding dealing with a manufactured home must still, for the most part, comply with the procedural mandates of R.P.A.P.L. Article 7. See R.P.L. §233 (d).

As a summary proceeding commenced pursuant to R.P.A.P.L. Article 7 is a purely statutory creature, "there must be strict compliance with the statutory requirements to give the court jurisdiction." Riverside Syndicate, Inc., v. Saltzman, et al., 49 AD3d 402 (1st Dep't 2008); accord King v. CEI, Inc., 252 AD2d 773, 774 (3d Dep't 1998); Calvi v. Knutson, 195 AD2d 828, 830 (3d Dep't 1993); MSG Pomp Corporation v. Baez, 185 AD2d 798, 799-800 (1st Dep't 1992); Perrotta v. Western Regional Off-Track Betting Corp., 98 AD2d 1, 2 (4th Dep't 1983); Shields, et al., v. Benderson Development Company, Inc., et al., 76 Misc 2d 322, 323 (Monroe Co. Ct. 1973); BMG Enterprises, Inc., et al., v. Bagdon, 17 Misc 3d 795, 796 (Auburn City Ct. 2007); Zenila Realty Corp. [*3]V. Masterandrea, 123 Misc 2d 1, 6 (Civil Ct. NYC, NY Co. 1984).[FN3]

We begin with the December 29, 2008 Hold Over Petition. In pertinent part, with emphasis added, it reads as follows:

2. Respondent Diane Lauzon is the tenant of said premises who entered in possession thereof under written rental agreement made on or about the 1st day of February 2007 between respondent and landlord... , for the term of one year and continued therein under the terms of the original agreement, the last month commencing on December 1, 2008, and ending on December 31, 2008 at the rental of $255.00 for each month payable on the 1st.

***

4. The term for which said premises were rented by the respondent expired on July 1, 2008.

5. The respondents [sic] continue in possession of the premises without permission of the landlord, or of the petitioner, after the expiration of said term. That on said date of the expiration or termination of said term, the rent then due and unpaid amounted to $2,360.00 and has not been paid although payment of same was

demanded of said respondent tenant on October 28, 2008.

In paragraph 2, we learn that Respondent's rental agreement "continued," and did not end, until December 31, 2008. In paragraph 4, however, it is alleged that the term "expired" on July 1, 2008 - - a date having no connection to any other pleading. [FN4] Further, paragraph 5 indicates that on the "date of the expiration or termination of said term, the rent then due and unpaid amounted to $2,360.00." Consistent with paragraph 2 above, the Non-Payment Petition alleges that the $2,360.00 figure is the total owed "pursuant to [the rental] agreement" for "respondent tenant" being "in possession" of the premises from May through December 2008. [FN5] Aside from its plain declaration [*4]of the tenancy "ending on December 31, 2008," as the only date in the Hold Over Petition in synch with any other pleading, the most equitable reading of the document points to the tenancy ending on December 31, 2008.

R.P.A.P.L. §711 (1) provides a ground for eviction where the tenant "continues in possession of any portion of the premises after the expiration of his term, without the permission of the landlord" (emphasis added). Here, the December 29, 2008 Hold Over Petition alleges, in effect, a fact that had not yet occurred; i.e., that the tenant was still in possession of the premises after December 31, 2008. As a holdover proceeding may only be maintained after the expiration of a term, a Holdover Petition sworn to before the termination of the term deprives the court of jurisdiction. As the Third Department has recognized, "[t]o maintain a holdover proceeding, the landlord must allege and prove that the tenant remains in possession after the expiration of his or her term." Kern, 40 AD3d at 1232 (citing R.P.A.P.L. §711 [1]); see also Calvi, 195 AD2d at 830 (recognizing same principle as Kern); accord 28 Mott Street Co., Inc., v. Summit Import Corporation, 64 Misc 2d 860, 861-862 (Civil Ct. NYC, NY Co. 1970) (finding petition, dated and served on August 31, 1970, to be "jurisdictionally defective on its face," as "there could be no holdover until September 1, 1970"). The Hold Over Petition herein must be dismissed accordingly.

Even employing the most liberal reading of the Hold Over Petition, wherein the Court would crown one of the other two dates as the intended expiration date for the tenancy, both July 1, 2008 and October 28, 2008 would (as noted above) directly contradict the 30-Day Notice to Terminate Tenancy in this matter. In other words, the Hold Over Petition would still jurisdictionally fail under R.P.A.P.L. §741 (4), which requires that "[e]very petition shall... state the facts upon which the special proceeding is based." Indeed, to comply with R.P.A.P.L. §741, "[t]he petition must give the court adequate notice of the transaction and material elements of the proceedings." Matter of Olean Urban Renewal Agency v. Herman, et al., 50 AD2d 1081, 1082 (4th Dep't 1975); see also MSG Pomp Corporation, 185 AD2d at 800 (noting that "R.P.A.P.L. §741 ensures that a tenant will be informed of the factual and legal claims that he or she will have to meet and enables the tenant to interpose whatever defenses are available"); Carriage Court Inn, Inc., v. Rains, 138 Misc 2d 444, 447 (Civil Ct. NYC, NY Co. 1988) (noting that "[a] tenant is entitled to a concise statement of the ultimate facts upon which the proceeding is predicated so that the issues, if any there be, are properly [*5]raised and can be met" [citing Giannini v. Stuart, 6 AD2d 418, 420 {1st Dep't 1958}]). [FN6] For sure, the contradictory Hold Over Petition does not even approach the mandate of R.P.A.P.L. §741 (4).

Next the Court considers the Notice of Petition. The appropriate test for evaluating its sufficiency is "one of reasonableness in view of the attendant circumstances." Oxford Towers, LLC, v. Leites, 41 AD3d 144, 145 (1st Dep't 2007). The Notice in question is captioned, "Notice of Petition Non-Payment and Holdover." In other words, Respondent was notified that she was both a tenant who owed rent and a former tenant who was no longer permitted to reside on the premises. However, in light of the controlling authority permitting such alternative pleading in an eviction proceeding (see Kern v. Guller, supra), the Court agrees with Petitioner that the R.P.A.P.L. §731 (1) notice requirement has not been violated as it relates to this particular issue. Compare 3657 Realty Co., LLC, v. Jones, 52 AD3d 272 (1st Dep't 2008) (where notice of termination properly pleaded alternative grounds for eviction; allegations sufficiently apprised the tenant "of the grounds on which she would have to defend the proceeding"); see also Oxford Towers, LLC, 41 AD3d at 145 (where tenant could not have been materially misled, confused or hindered by notice in preparing defense).

However, the Notice of Petition in our matter is dated December 28, 2008, a date prior to the end of the pleaded tenancy, which was December 31, 2008. As with the Hold Over Petition, this R.P.A.P.L. §711 (1) defect is jurisdictionally fatal to the validity of the Notice.

Next, the Court considers the Non-Payment Petition. As the Notice of Petition has been invalidated, this Petition must also fall, as both are required under R.P.A.P.L. §731 (1) to be properly filed.[FN7] Further, the Petition fails to allege the commencement date of the purported rental agreement between the parties. The R.P.A.P.L. §741 (4) jurisdictional requirement to "state the facts upon which the special proceeding is based" has thus been violated as well.

Moreover, no actual "demand" for rent was made in the October 28, 2008 Notice to Terminate Tenancy, as jurisdictionally required in R.P.L. §233 (b)(2). See Rolling Acres Mobile Home Park v. Pike, et al., 178 Misc 2d 356, 359 (Chemung Co. Ct. 1998) (noting that "[i]n order to satisfy the jurisdictional requirement, a predicate demand for rent must be clear, unequivocal and unambiguous" [internal citations omitted]). The Notice here did not even delineate specific amounts owed, but merely, as a basis for termination, listed past months when rent was purportedly unpaid. The October 30, 2008 Affidavit of Service of the Notice to Terminate also jurisdictionally failed to [*6]comply with R.P.A.P.L. §735 (1), as only a singular mailing is noted. [FN8] In sum, no "demand" was served as prescribed in R.P.A.P.L. §735 (see again R.P.L. §233 [b][2]).[FN9] Without this, Petitioner can not "jurisdictionally maintain an eviction action pursuant to this statute." id. at 358.

Finally, the Court considers the Affidavit of Service, sworn to on January 2, 2009. The Affidavit indicates that a "Notice of Petition & Petition To Recover Possession Of Real Property" was served on December 31, 2008, having been affixed to the Respondent's door at four specific times on that date. The items were also said to be mailed on "12/31/0001." While the Court agrees with Petitioner in finding the latter date to be a non-jurisdictional typographical error, the Affidavit's failure to specify which Petition was actually served, is fatal to the document's validity.

The problem is twofold. First, the Affidavit references a singular Petition, when there were, in fact, two in question. Second, both Petitions have the same beginning caption, referenced in the Affidavit: "PETITION TO RECOVER POSSESSION OF REAL PROPERTY." The distinguishing notations underneath this phrase found in both petitions are "Hold Over" and "Non-Payment" respectively. Unfortunately, no fair reading of the Affidavit reveals which of the two Petitions was actually served. [FN10] Accordingly, no discernible "proof of service" of either Petition, via the Affidavit, was filed as required under R.P.A.P.L. §735 (2).[FN11]

Finally, the Affidavit of Service failed to comply with R.P.A.P.L. §735 (1), in that despite a certified mailing receipt being attached, the Affidavit itself only indicates a singular first class mailing. This, in and of itself, is a jurisdictional defect. Compare Matter of Rodelli, Sr. v. McArthur's, Inc., 243 AD2d 1040, 1041 (3d Dep't 1997) (finding jurisdictional defect where papers were only mailed certified; noting that "jurisdiction is not acquired unless the statutory manner of service is strictly adhered to" [internal citation omitted]), citing Columbus Prop., Inc., 163 Misc 2d at 448-449 (recognizing that "service must be made exactly as the statute requires; actual notice [*7]alone is insufficient" and that "[t]he requirement in a summary proceeding of two different mailing methods was a conscious legislative choice" to further the likelihood of actual receipt). Accordingly, the Affidavit of Service is jurisdictionally defective.

As the Court lacks jurisdiction, the Petitioner's Notice of Petition and two Petitions seeking possession of the premises in question and unpaid rent, attorney fees and costs, are hereby dismissed.

IT IS SO ORDERED.

November 19, 2009

__________________________________

Hon. Timothy Patrick Murphy

Acting Town Justice Footnotes

Footnote 1: Respondent unequivocally objected therein to the jurisdiction of this Court, as among other things, the Petitions were filed prior to the expiration of the term of tenancy and there was no actual "demand" for rent. See official court recording of proceeding: January 6, 2009, at 1:39-1:43; 2:01-2:02.

Footnote 2: The Court notes, of course, that while a personal jurisdiction defense must be interposed through an answer or motion (see C.P.L.R. Rules 320 [b] and 3211 [e]; see also generally Calloway, et al., v. National Services Industries, Inc., et al., 93 AD2d 734, 735 [1st Dep't 1983]) - - and other defenses and related counterclaims (i.e., warranty of habitability issues) are permitted in a defendant's answer, while still preserving the litigant's right to protest the court's jurisdiction (see generally Textile Technology Exchange, Inc., v. David, 81 NY2d 56, 58-59 [1993]; Calloway, 93 AD2d at 735; see also Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, C.P.L.R. C3211:59) - - subject matter jurisdiction may be challenged at any time in the litigation. See Siegel, New York Practice, Fourth Edition, Ch. 5 "Appearance," §111 (West Group 2005).

Footnote 3: See also Columbus Prop, Inc. v. ISKS Realty Corp., 163 Misc 2d 446, 448 (Civil Ct. NYC, NY Co. 1994) (recognizing that "[b]ecause the petitioner obtains the benefit of an expedited and simplified procedure which bypasses many of the usual procedural steps of a plenary action, petitioner must prove strict compliance with all of the requirements of a summary proceeding").

Footnote 4: During oral argument on November 12, 2009, Petitioner opined in good faith that the July 1, 2008 date related to a previously withdrawn eviction petition regarding the Respondent. The Court notes, however, that none of the supporting pleadings regarding the prior petition (apparently served in August 2008) described in Petitioner's November 9, 2009 Memorandum of Law (see exhibits B through E) refer to this date. But even had the July 1, 2008 date been relevant to a prior termination notice, it would have been superceded by the pleadings in the instant action.

Footnote 5: We are also told in Hold Over Petition [paragraph 5] that payment for the $2,360.00 was demanded of the tenant on October 28, 2008. This is, of course, mathematically impossible if one accepts the monthly itemization set out in the Non-Payment Petition. Further, if one were to attempt to read paragraph 5 to imply that October 28, 2008 was actually the "date of the expiration or termination of said term," that would wholly contradict, not only paragraphs 2 and 4 above, but also the 30-Day Notice to Terminate Tenancy, which indicates that the term was to expire thirty days after October 28th.

Moreover, it is debatable whether rent can be properly demanded on October 28, 2008 (as claimed in paragraph 5) for a tenancy term that allegedly ended on July 1, 2008 (see again paragraph 4) for amounts owed beyond July 1st, as a purported "holdover" is no longer a tenant. As one commentator has observed, "[a] petition cannot... be initiated as both a "nonpayment and holdover," because a nonpayment proceeding is premised on the existence of a tenancy and a holdover proceeding is premised on the expiration of a tenancy (emphasis added)." See Scherer and Fisher, Residential Landlord-Tenant Law in New York, Jurisdiction, Venue and Forum in Summary Proceedings, §7:137, Thompson-West Practice Guide (2008-09 Edition). In other words, one is either a tenant who owes rent or a former tenant who is a holdover and no longer has permission to reside on the premises. However, as the Third Department has observed, these two particular inconsistent causes of action may be properly pleaded simultaneously. See Kern v. Guller, 40 AD3d 1231, 1232 (3d Dep't 2007) (citing C.P.L.R. Rule 3014).

Footnote 6: See also Scherer and Fisher, Residential Landlord-Tenant Law in New York, Jurisdiction, Venue and Forum in Summary Proceedings, §7:139, Thompson-West Practice Guide (noting that R.P.A.P.L. §741 requires that a holdover petition include the termination date); see also Dolan, Hon. Robert F., New York Real Property Practice, Rasch's Landlord and Tenant Including Summary Proceedings, Fourth Edition, Volume Two, §§ 41:24-41:25 (West 1998) (noting that R.P.A.P.L. §741 requires that the petition indicate the theory of recovery "with sufficient precision and clarity to enable the court to control the case and the adversary to prepare").

Footnote 7: The Court also notes that rent in the Non-Payment Petition is demanded for part of the same time period (July through December 2008) where Respondent was also alleged (in the companion Petition) to be a holdover. But as the Court does not deem the alternative pleadings jurisdictionally defective, it would be for a jury to determine the merit of Petitioner's allegations.

Footnote 8: The R.P.A.P.L. §735 (1) version of "nail and mail" service requires that""[w]ithin one day after such... affixing or placement," the documents must be mailed to the respondent "both by registered or certified mail and by regular first class mail (emphasis added)."

Footnote 9: Further, the copy of the certified mail receipt filed with the Court indicates an October 29, 2008 transaction. The Affidavit of Service, however, indicates that the Notice was mailed after it was affixed to the door of Respondent's residence on October 30, 2008.

Footnote 10: Contrast this scenario to the Notice of Petition, wherein all nine occasions where the word "petition" is referenced, it is mistakenly described in the singular tense. However, as Respondent was sufficiently alerted to both theories of the impending lawsuit - - though not the actual number of petitions - - the Court finds no jurisdictional defect in this regard.

Footnote 11: During oral argument on November 12, 2009, Petitioner suggested that defects in the Affidavit, if any, could be potentially curable by the Court entertaining live testimony from the process server. A so-called "traverse hearing" regarding the propriety of the service of process is a consequence of a tenant's request, challenging the issue (i.e., Hallston Manor Farm, LLC v. Andrew, 60 AD3d 1330, 1331 [4th Dep't 2009]; see also Scherer and Fisher, Residential Landlord-Tenant Law in New York, Trial and Stipulations of Settlement, §14:23, Thompson-West Practice Guide) - - not as a remedy to cure a landlord's defective affidavit of service. The Court rejects this argument accordingly.