K.N.W. Assoc. v Parish
Annotate this CaseDecided on September 23, 2004
Civil Court of the City of New York, New York County
K.N.W. ASSOCIATES, Petitioner,
against
MONIQUE PARISH and EDWARD DAVIDSON, Respondents.
251728/04
Ruben Andres Martino, J.
Petitioner moves for an order awarding it past and future use and occupancy. Respondent cross moves to quash a subpoena and dismiss because proof of service was not filed timely and the 10 Day Notice contains alternative grounds. Petitioner responded with a motion to file the affidavit of service nunc pro tunc and for summary judgment. Based on the Notice of Motion (1), Notice of Cross Motion (2), Notice of Motion for Leave to File (3), and the Affirmation by respondents' counsel (4), the Court decides as follows.
Failure to Timely File and Nunc Pro Tunc Relief
This licensee proceeding was commenced by conspicuous service on respondents with the nailing done on 7/17/04 after two unsuccessful personal service attempts. Mailing was done on 7/19/04, the next business day, and filing on 7/23/04. The return date was 7/26/04. Real Property Actions and Proceedings Law (RPAPL) § 735 provides that the affidavit of service must be filed within three days after mailing and that the filing constitutes completion of service. RPAPL § 733(1) states that the return date must be between 5 and 12 days after service is complete. Petitioner failed to comply with both of these provisions in that the affidavit was filed 4 days instead of 3 days after mailing and respondents had only 3 days instead of at least 5 between filing, when service was complete, and the return date. The parties do not dispute this but differ on the consequences of the filing and whether it can be cured by petitioner's New York City Civil Court Act (CCA) 411 application for nunc pro tunc relief. Respondents' central argument is that the failure to provide between 5 and 12 days pursuant to RPAPL § 733(1) is a non-curable jurisdictional defect requiring dismissal.
In Jamal Estates v Crockwell (113 Misc 2d 548, 453 NYS2d 134 [App Term 1st Dept 1982]), the Appellate Term of this Department specifically held that nunc pro tunc relief under CCA 411 is available to remedy a violation of RPAPL § 733 if there is no prejudice. In that case, the affidavit of service was filed 4 days instead of 5 days before the return date. The Appellate Division, First Department, in Berkeley Associates Co. v Di Nolfi (122 AD2d 703, 505 NYS2d 630 [1st Dept 1986], lv dismissed 69 NY2d 804 [1986]) vacated a default judgment after inquest [*2]for the petitioner's failure to follow RPAPL § 733. The court held that, "This difference of four days [between completion of service and the return date] clearly prejudiced Di Nolfi who arrived back at his office only one day after the warrant of eviction was executed." Berkeley, 122 AD2d at 632. The dissent disagreed with the majority's finding of prejudice and stated that the defect might have been cured by the provisions of CCA § 411.
Respondents contend that Berkeley implicitly overruled Jamal and cites the case of 445 E. 85th Street, LLC v Phillips (2003 NY Slip Op. 51270, 2003 WL 22170112 [Civ Ct, NY County 2003]) to support their position. This court is not bound by and disagrees with the reasoning in 445 E. 85th Street, LLC. The Berkeley Court did not overrule Jamal which was not mentioned in the decision. A significant part of the Berkeley decision focused on the prejudice suffered by the respondent because of the improper filing. In New York Hanover Corp. v Martineitis (NYLJ, Sept. 25, 1992, at 25, col 2 [App Term 1st Dept]), the Appellate Term continued to follow Jamal and relied on Berkeley for the proposition that prejudice is a necessary element for dismissal because of a filing defect: "Contrary to the finding of the court below, the fact that proof of service was not final until August 27, 1990, or three days before the return date of the petition, rather than five days before the return date (See RPAPL 733[1], 735[2][b]), did not constitute a jurisdictional defect (Jamal Estates v. Crockwell, 113 Misc 2d. 548 [AT 1], absent a showing of prejudice by respondent (cf. Berkeley Associates Co. V. Di Nolfi, 122 AD2d 703, lv dismissed 69 NY2d 804)."
The Appellate Term has consistently relied on Jamal after Berkeley. (See Farm Equities and Mgt. Co. v Malcolm, NYLJ, Oct. 28, 1996, at 27, col 4 [App Term 1st Dept]) [Failure to file proof of service is not a jurisdictional defect]; Ardowort Corp. v Bierly, NYLJ, March 21, 1994, at 29, col 6 [App Term 1st Dept] [CCA 411 is proper remedy since filing requirement is not jurisdictional]). Recently, in Freidlander v Ramos (3 Misc 3d 33, 779 NYS2d 327 [App Term 2nd & 11th Dept 2004]), the Second Department held that the CCA § 411 remedy is applicable to a RPAPL § 733(1) filing defect, as in this case, absent a showing of prejudice and relied on both Jamal and Berkeley.
In this case respondent fails to allege or demonstrate any prejudice. The nailing was done on Saturday, 7/7/04 and the mailing on Monday, 7/19/04. The affidavit of service was filed on Friday, 7/23/04, late for purposes of both 735 and 733(1). The return date was 7/26/04. Had petitioner filed the affidavit of service on either 7/19 or 7/20, there would have been absolutely no change in the notice afforded the respondent since the nailing and mailing dates would not have been affected and the return date of 7/26 would have been proper. Respondent apparently received notice and appeared on the first return date. Additionally, upon granting the nunc pro tunc motion, respondents' time to respond will commence de novo per CCA § 411 giving them more time to prepare any defenses.
Respondents' motion to dismiss because of the untimely filing of the affidavit of service is denied. This is not a jurisdictional defect and respondents have shown no prejudice. Petitioner's Cross motion for nunc pro tunc filing of the affidavit of service is granted for the same reasons. [*3]
The 10 Day Notice
Respondents next argue that the proceeding should be dismissed because the 10 Day Notice to Quit raises alternative grounds and is therefore an insufficient predicate for this case. Alternative grounds render a notice invalid only if the stated claims are inconsistent with one another. (Turin Housing Dev. Fund Co., Inc. v Maor, 1 Misc 3d 907, 2003 WL 23146010 [Civ Ct, NY County 2003]). The notice in this case alleges that respondents are licensees pursuant to permission given by the tenant of record who has passed away. It alleges that they are also there illegally because they do not have the consent or permission of petitioner, have no succession rights and are therefore in violation of New York City regulations. These are not mutually exclusive grounds and are both consistent with the particular facts alleged in the notice. The test for the sufficiency of a predicate notice in a summary proceeding is reasonableness in light of the attendant circumstances. (Hughes v Lenox Hill Hospital, 226 AD2d 4, 651 NYS2d 418 [1st Dept 1996]; 190 Riverside Drive v Nosei, 185 Misc 2d 696, 713 NYS2d 801 [App Term 1st Dept 2000]). The notice in this case adequately specifies the facts relied on by petitioner to support its claims which are not inconsistent. The motion to dismiss because of an improper predicate notice is denied.
Quashing the Subpoena
Respondents move to quash the subpoena duces tecum served on them by petitioner requesting various documents because they contend it is really impermissible discovery. A subpoena duces tecum cannot be used as a discovery device or fishing expedition. (Mestel & Co., Inc. v Smythe Masterson & Judd, Inc., 215 AD2d 329, 627 NYS2d 37 [1st Dept 1995]. Its purpose is to compel the production of specific documents that are relevant and material to the factual issues in a pending proceeding. (Matter of Terry D., 81 NY2d 1042, 601 NYS2d 453 [1993]). The standard for a motion to quash is whether the requested information is utterly irrelevant to any proper inquiry. ( Ayubo v Eastman Kodak Co., Inc., 158 AD2d 641, 551 NYS2d 944 [2nd Dept 1990]; Fitzsimmons v Gottlieb, NYLJ, April 16, 1992, at 25, col 1 [App Term 1st Dept]). In this case petitioner claims that respondents are not successors, in part, because they have not resided or maintained the premises as their primary residence for the required two year period prior to the death of the tenant of record. The majority of the documents requested, such as tax, voter registration apartment insurance and telephone records, are relevant and material to this issue. (See Knickerbocker Village Inc. v Christopher, NYLJ, Nov. 15, 1995, at 26, col 4 [Civ Ct, NY County]). However, the Court strikes the request for employment records and the names and addresses of present and past employers because this is overly broad and constitutes discovery. Accordingly, the motion to quash is granted only to the extent of striking the request for documents in paragraphs 16, 18 and 19 of the subpoena.
Use and Occupancy
Petitioner moves for past and prospective use and occupancy while the case is pending. However, in a summary proceeding, this can be awarded only as part of the final judgment of possession or as a condition of an order granting a stay. (Montague Street Realty Associates v Simpson, NYLJ, May 31, 1994, at 35, col 3 [App Term 2nd and 11th Dept]). Respondents have not sought a stay in this case. Therefore the motion for use and occupancy is denied without [*4]prejudice pending determination at trial.
Summary Judgment
Petitioner moves for summary judgment based on an administrative decision issued by the Division of Housing and Community Renewal. Respondents have not yet answered. A motion for summary judgment may not be made before issue is joined. Rochester v Chiarella, (65 NY2d 92, 490 NYS2d 174 [1948]). The motion for summary judgment is denied without prejudice.
Conclusion
For the reasons stated, the motions for use and occupancy and summary judgment are denied. Petitioner's request for nunc pro tunc relief is granted. The affidavit of service is deemed timely filed. Respondents' statutory time to answer shall run from service of a copy of this order with notice of entry. Respondents' motion to dismiss is denied. The motion to quash the subpoena is granted only to the extent of striking the request for documents in paragraphs 16, 18, and 19. The case shall appear on this Court's calendar for resolution on October 21, 2004. This is the Order of the Court.
New York, NY
September 23, 2004
_______________________________
Hon. Ruben Andres Martino
Acting Supreme Court Justice
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