Bayridge Prince, LLC v City of New York
Annotate this CaseDecided on May 5, 2017
Supreme Court, Kings County
Bayridge Prince, LLC, Plaintiff,
against
The City of New York, ENVIRONMENTAL CONTROL BOARD OF THE CITY OF NEW YORK, OFFICE OF THE SHERIFF OF THE CITY OF NEW YORK, KINGS LAW ENFORCEMENT BUREAU, and DEPARTMENT OF HOUSING PRESERVATION & DEVELOPMENT OF THE CITY OF NEW YORK, Defendants.
3195/2016
Plaintiff:
Alfred R. Fuente, Esq.
Fuente & Fuente, PLLC
40 Prospect Park West, Ste. 5D
Brooklyn, NY 11215
Of Counsel to
Michael P. Lagnado, Esq.
55 Wall Street, Ste. 810
New York, NY 10005
Defendant:
Louise A. Moed, Esq.
Corporation Counsel
100 Church Street
New York, NY 10007
Dawn M. Jimenez-Salta, J.
Recitation, as required by CPLR §2219(a), of the papers considered in the review of:
1) Plaintiff Bay Ridge Prince L.LC.'s Order to Show Cause dated March 29, 2016 for an order granting the following relief:
(a) vacating all judgments entered against the Plaintiff and in favor of the City of New York ("City") premised upon Notices of Violation (NOV);
(b) dismissing all NOV's;
(d) vacating all Executions premised upon the Judgments and issued by the City against Plaintiff;
(e) permanently enjoining Defendant Sheriff of the City of New York, Kings Law Enforcement Bureau from collecting any additional rents or proceeds from the Prince Hotel located at 315 93rd Street, Brooklyn, New York, taking action related to the Executions issued by the City against BRP, or taking any other action to enforce the Judgments including forcing the sale of the property scheduled by the Sheriff for June 8, 2016;
(e) requiring the Sheriff to withdraw and vacate the Prince Hotel;
(f) requiring Defendant New York City Department of Housing Preservation and Development (HPD) to expedite its review of BRP's Certification of No Harassment or Exemption Application;
(g) requiring the City and Sheriff to return any and all rent or proceeds collected from the Prince Hotel to BRP; and
(h) granting any other relief which this Court deems just and necessary.
2) Plaintiff's Affirmation in Support of its Motion brought by Order to Show Cause, dated March 28, 2016;
3) Plaintiff's Affirmation of Notice to Defendants dated March 29, 2016;
4) Plaintiff's Memorandum of Law in Support of Motion brought by Order to Show Cause, dated March 22, 2016
5) Defendant City's Affirmation in Opposition to Plaintiff's Order to Show Cause with attached affirmations, dated May 12, 2016;
6) Defendant City's Memorandum of Law in Opposition to Plaintiff's Order to Show Cause, dated May 12, 2016;
7) Defendant City's Supplemental Affirmation in Further Opposition to Plaintiff's Order to Show Cause, dated July 21, 2016;
8) Plaintiff's Reply Affirmation in Support of Motion brought by Order to Show Cause dated July 8, 2016;
9) Plaintiff's Reply Memorandum of Law in Further Support of Motion brought by Order to Show Cause, dated July 8, 2016;
10) Defendant City's Notice of Motion pursuant to CPLR §§ 304 and 306(b) dated August 12, 2016
11) Defendant City's Affirmation in Support of Motion dated August 12, 2016
12) Plaintiff's Affirmation in Opposition to Defendant's Motion to Dismiss dated October 25, 2016;
13) Defendant City's Reply Affirmation in Further Support of Motion Pursuant to CPLR [*2]§§ 305 and 306-b, dated October 25, 2016;
Papers
Notice of Motion/Order to Show Cause and Affirmations in Support: Plaintiff 1, Plaintiff 2, Plaintiff 3, Defendants 10 [Exh. A-C]. Defendants 11.
Affirmation in Opposition: Defendants 5 [Exh. A-C], Plaintiff 12 [Exh. A-H].
Replying Affirmations: Plaintiff 8 [Exh. A-D], Defendants 13
Supplemental Affirmation in Opposition: Defendants 7 [Exh. 65-67]
Other Memorandum of Law: Plaintiff 4, Defendants 6 [Exh. 1-64], Plaintiff 9.
Plaintiff's Order to Show Cause brought forth against the City of New York, the New York City Department of Environmental Protection, Office of the Sheriff of the City of New York, Kings Law Enforcement Bureau, and the New York City Department of Housing Preservation and Development is resolved as follows: This Court declines to enter a Decision on the merits of Plaintiff's request for relief in its Order to Show Cause. Due to a filing error, this Court has no subject matter jurisdiction to issue a decision based on the merits of Plaintiff's request for relief. See, O'Brien v. Contreras, 126 AD3d 958 (2d Dept. 2015). The City's Motion for an Order deeming Plaintiff's action a nullity pursuant to CPLR 304 and for an Order dismissing Plaintiff's action for failure to timely serve the unfiled Summons with Notice pursuant to CPLR 306-b is GRANTED.
Plaintiff brought forth its Order to Show Cause on March 29, 2016. However, at the time, due to what appears to be a clerical oversight, there was no underlying pleading filed with the clerk of the court. In the State of New York, pursuant to CPLR 304(a) "An action is commenced by filing a summons and complaint or summons with notice, in accordance with rule twenty-one hundred two of this chapter."[FN1] Furthermore, "[t]he failure to file the initial papers necessary to institute an action constitutes a nonwaivable, jurisdictional defect, rendering the action a nullity." See, O'Brien, 126 AD3d 958 [internal citations omitted] (despite obtaining an index number and moving by order to show cause, plaintiff failed to file a summons and complaint and thus the court's jurisdiction was never invoked). Accordingly, this Court lacks subject matter jurisdiction to adjudicate this matter or grant Plaintiff's request for relief.
This Court does not doubt, based on the assignment of the index number and the acceptance for filing of the Order to Show Cause that Plaintiff's Counsel had a good faith basis to believe that the Summons and Complaint had been accepted for filing with the clerk of the court at the time this action was commenced.[FN2] Furthermore, this Court has no reason to doubt Plaintiff's counsel's assertion that the clerk in the Ex Parte Motions Office insisted that the office would not accept an order to show cause for filing unless the action was commenced via the filing of a summons pursuant to CPLR 304. It is clear that Plaintiff's counsel operated under his [*3]good faith assumption that this action was properly commenced.
However, all of these circumstances cannot change the fact that no underlying pleading was filed at the time Plaintiff commenced this action. This Court has no discretion to waive such a defect. "[C]omplete failure to file the initial papers necessary to institute an action is not the type of error that falls within the court's discretion to correct under CPLR 2001." See, O'Brien, 126 AD3d 958 [internal citations omitted]. Plaintiff's Counsel is mistaken in his assertion that the action was properly commenced by the filing of an Order to Show Cause, payment of a Request for Judicial Intervention (RJI) and purchase of an index number.
This Court agrees with Plaintiff's assertion that CPLR 306-a should have precluded the assignment of an index number to the action without a prior filing of a Summons with Notice. However, the Summons with Notice was never properly filed with the Clerk of Court. As a consequence, no legal action was commenced and the subsequently served Summons with Notice is invalid. Even if this Court were to grant Plaintiff permission to extend the time to serve the Summons with Notice pursuant to CPLR 306-b, this would still not cure Plaintiff's failure to commence the action due to the underlying filing defect. See, Hollowell v. Decaro, 118 AD3d 749 (2d Dept. 2014).
Defendant City timely filed its motion pursuant to CPLR 304 and 306-b in response to Plaintiff's late service of the Summons with Notice. Plaintiff served the Summons with Notice on August 1, 2016 and Defendant City timely filed its motion on August 12, 2016 pursuant to CPLR 320.
For all the reasons set forth above, this Court dismisses Plaintiff's case pursuant to CPLR 304.
It is hereby ordered:
ORDERED that Defendant City's Motion for an Order deeming Plaintiff's action a nullity pursuant to CPLR 304 and for an Order dismissing Plaintiff's action for failure to timely serve the unfiled Summons with Notice pursuant to CPLR 306-b is GRANTED;
ORDERED that Plaintiff's Order to Show Cause is DENIED as moot.
This constitutes the decision of this Court.
Dated May 5, 2017
Brooklyn, New York
________________________________
Dawn Jimenez-Salta
J.S.C. Footnotes
Footnote 1:Rule twenty-one hundred two states in relevant part, "(a) Except where otherwise prescribed by law or order of court, papers required to be filed shall be filed with the clerk of the court in which the action is triable. In an action or proceeding in supreme or county court and in a proceeding not brought in a court, papers required to be filed shall be filed with the clerk of the county in which the proceeding is brought."
Footnote 2:See, Plaintiff's Affirmation in Opposition to Motion to Dismiss dated October 25, 2016.
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