239 S. 1st St. LLC v Ribot

[*1] 239 S. 1st St. LLC v Ribot 2007 NY Slip Op 51221(U) [16 Misc 3d 1101(A)] Decided on June 15, 2007 Civil Court Of The City Of New York, Kings County Heymann, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 15, 2007
Civil Court of the City of New York, Kings County

239 South 1st Street LLC, Petitioner,

against

Rafael Ribot, John Doe, and Jane Doe, Respondents.



57782/07



The petitioner was represented by:

Paul Coppe, Esq., P.C.

370 Seventh Avenue, Suite 720

New York, New York 10001

212- 564-4848

The respondent was represented by:

Martin S. Needelman, Esq.

Susan Barrie, Esq., Of Counsel

Brooklyn Legal Services Corp.A

Williamsburg Office

260 Broadway

Brooklyn, New York 11211

718-782-6195

George M. Heymann, J.

Petitioner commenced this nonpayment proceeding by service upon the respondent of a written Three Day Demand, dated January 26, 2007, by conspicuous service on February 1, 2007. Thereafter, on February 21, 2007, the petitioner filed the Notice of Petition and Petition with the clerk of the court and then served copies of same upon the respondent, also by conspicuous service on February 20, 2007.

On February 27, 2007, the respondent appeared and answered by her attorney, raising several defenses to this proceeding, including, inter alia, lack of subject matter jurisdiction for improper service of the rent demand (¶ 1); lack of personal jurisdiction for improper service of the Notice of Petition and Petition (¶ 2); and that "[t]he Notice of Petition and Petition are defective and must be dismissed as the copy of theses pleadings sent to the respondents does not indicate the name or the stamp of the clerk of the court as required by law thereby depriving the court of jurisdiction over this proceeding." (¶ 13)

The case first appeared on the Court's calendar on March 6, 2007 and was thereafter adjourned, on consent, to April 10, 2007 and then to April 11, 2007 at which time the attorney for the respondent moved for an order dismissing this matter on the grounds of lack of jurisdiction. Pursuant to a stipulation that date, the matter was further adjourned to May 8, 2007 - the petitioner to serve opposition papers by April 27, 2007 and respondent to reply by May 7, 2007. On May 8, 2007, the case was adjourned, once again, to June 8, 2007. On June 8, 2007, after a brief off the record discussion with the attorneys for both sides, the Court accepted all papers on the issues for submission.

QUESTION PRESENTED

Does the absence of the signature or stamped facsimile thereof of the name "Jack Baer" on the line above the designation "Clerk of the Civil Court" on the copy of the Notice of Petition and Petition served upon the respondent render the papers null and void, thereby depriving the Court of personal jurisdiction of the respondent?

DISCUSSION AND CONCLUSIONS OF LAW

I[*2]

For the reasons set forth below, it is the opinion of this Court that the absence of the signature or stamped facsimile of the clerk of the court on the copy of a Notice of Petition and Petition served on the respondent, provided the originals were properly filed with the court, does not invalidate said pleadings or deprive the court of personal jurisdiction, if otherwise properly served on the respondent.

The Notice of Motion herein, dated April 3, 2007, was filed with the clerk of the court on April 4, 2007. It contains the attorney's affirmation, a copy of the Notice of Petition and Petition in question and a copy of the respondent's answer to same. There was no affidavit from the respondent attached to said motion. A separate affidavit from the respondent, dated April 3, 2007, and notarized on April 9, 2007, was first mailed to the petitioner's attorney on that day.

The relevant paragraphs of the attorney's affirmation read as follows:

3. The copy of the notice of petition received by the respondent does not bear any indication that it was issued by the court. See Exhibit A. Whereas, on information and belief, the original notice of petition bears the stamped signature of "Jack Baer" across the signature line for the "Clerk of the Civil Court of the City of New York", the copy received by the respondent shows only the signature line itself, without any signature, written or stamped, above, below, or across the line. Indeed, the signature line does not even display the symbol "s/" indicating that the original had been signed. (Emphasis added)

8. Additionally, my client informs me that he was not personally served with the petition, nor was a copy of the petition left at the subject premises, nor did he receive a copy by certified mail. He informs me that h[e] received only 1 copy in the mail and therefore the court lacks personal jurisdiction over respondent. (Emphasis added)

Regarding the issue of the missing clerk's stamp or signature on the copy received by the respondent, each attorney submitted only one lower court case (each from Civil Court, NY County) that specifically addressed this issue in support of their respective positions. Ironically, both parties rely on the interpretation of a single sentence in the Court of Appeals case Matter of Gershel v. Porr, 89 NY2d 327, 653 N.Y.S.2d 82, specifically: "Basic to this statutory procedure is the rule that the papers served must conform in all important respects to the papers filed (Citations omitted)". Id.at 332 (Emphasis added)

Therefore, it is up to this Court to break the stalemate between these two contradictory lower court decisions and the interpretation of Matter of Gershel v. Porr, supra..

Respondent cites the commercial nonpayment case 225 5th LLC v. Fiori Fiori Inc., NYLJ, 2/16/05, p.22, col.3, wherein the respondent argued that the petition was defective because the copy served on it did not bear any indication that it was issued by either a judge or court clerk as there was no stamp or signature of the clerk of the court on it and the index number was hand written, as it is in the case at bar.

In this case, the copy of the notice of petition served on the respondent was not an accurate copy, in that it lacked the signature of the Clerk of the Court. The petitioner's failure to have served respondent with a true, conformed copy of a notice of petition issued by the Clerk of the Court deprives the Court of personal jurisdiction over the respondent. (Citations omitted) [*3]

There, the court further found that "a handwritten index number does not provide the tenant with adequate notice that the notice of petition was properly issued."

In response to the respondent's position, petitioner refers to First Avenue Owner's Corp. v. Riverwalk Garage Corp., 6 Misc 3d 439, 784 N.Y.S.2d 844, which, faced with the same factual situation regarding the lack of the clerk of the court's stamp on the notice of petition, reached the opposite conclusion from the court in 225 5th LLC v. Fiori Fiori Inc., supra. In granting the petitioner's motion to dismiss the respondent's affirmative defense which alleged that the notice of petition received by the respondent was defective because it was undated and lacked the stamp of the clerk, the court stated:

RPAPL § 731 (1) and New York City Civil Court Act § 401(c) require that a notice of petition be duly issued by a judge or clerk of the court.[FN1] The notice of petition filed in this action was duly issued by the clerk of the court. Additionally, respondent's claim that the notice of petition it was served with was not dated and lacked the stamp of the clerk of the court does not warrant dismissal of this action. The rule is that the papers served in an action "conform in all important respects to the papers filed." (See Gershel v. Porr, 89 NY2d 327, 653 N.Y.S.2d 82, 675 N.E.2d 836 [1996]). The notice of petition served on respondent conformed in all important respects to the notice of petition filed with the court. First Avenue Owner's Corp. v. Riverwalk Garage Corp., 6 Misc 3d at 444, 784 N.Y.S.2d at849

This Court agrees with the conclusion reached by the court in First Avenue Owner's Corp. v. Riverwalk Garage Corp., id..[FN2] In citing to Gershel v. Porr, supra, the court properly applied the phrase "in all important respects" by finding that the service upon the respondent of a copy of the notice of petition lacking the stamp or signature of the clerk of the court, but correct in every other manner, "conformed" in all "important" respects.[FN3] Respondent's citing of Fry v. [*4]Village of Tarrytown, 89 NY2d 719, 658 N.Y.S.2d 205, is distinguishable with regard to this matter. In that case, the petitioner failed to file a signed order to show cause and petition with the clerk of the court after paying the filing fee. However, the Court of Appeals held that because the respondent appeared in the proceeding and litigated its merits without raising this objection the Supreme Court had subject matter jurisdiction. In the instant proceeding, there is no question that the petitioner properly filed the initiatory pleadings with the clerk of the court and that this Court has subject matter jurisdiction. Here, the issue is limited to the conformance of the copy of the pleadings to the originals and whether the omission of the signature or stamp of the clerk of the court and the insertion of the handwritten index number nullifies the otherwise proper pleadings.[FN4]

At no time does the respondent challenge the substantive body of the Notice of Petition or the Petition or indicate that they differ in any way from the originals filed with the court, but for those two items mentioned. The respondent does not claim that the Notice of Petition he received was illegible or unintelligible so that he could not ascertain the nature of this proceeding or what was required of him in order to appear and / or answer. The papers contained all the essential and relevant information such as the names of the parties, the index number (albeit hand written), the address of the court where the respondent was to appear and / or answer, as well as the name and address of the petitioner's counsel. Clearly, if the respondent had any doubts about the validity of the papers served upon him, simply because of the blank space above the line for the clerk of the court, there was sufficient information contained therein with which to make intelligent inquiry with the court itself. The assertion by respondent's attorney that the mere insertion of a handwritten "s/" on that line would have sufficed to notify the respondent that the document was issued by the clerk of the court in reality doesn't apprise him of anything because that symbol still does not inform the reader as to who actually "signed" the filed original. In either case, with or without such a marking, until the original papers are viewed it cannot be verified that there was an actual signature or stamp of the clerk of the court on the original.

At this juncture, the Court believes that a careful look at the appropriate statute regarding the commencement of a special proceeding might prove interesting to all counsel representing petitioners in summary landlord - tenant proceedings. Section 400 of the New York City Civil Court Act (NYCCCA) which provides for the method of commencing a special proceeding was created in 1992 and was recently amended in 2005 to follow the lead of section 304 of the Civil Practice Law and Rules (CPLR) pertaining to the method of commencing actions or special [*5]proceedings in Supreme and County Courts, which converted to a commencement- by- filing system. Of interest in section 304 is the following language:

...filing shall mean the delivery of the ...petition to the clerk of the court in the county in which the ...special proceeding is brought or any other person designated by the clerk of the court for that purpose together with any fee required...(Emphasis added)

NYCCCA § 400, although similar, is not identical and provides in relevant part the following:

1. ...A special proceeding is commenced by filing a notice of petition and petition ...[FN5] For the purposes of this section...filing shall mean the delivery of ... the notice of petition and petition.... to the clerk of the court in the county in which the ... special proceeding is brought together with any fee required.... At the time of filing, the original and a copy of the papers shall be date stamped by the court clerk who shall file the original and maintain a record of the filing and shall return the copy to the party who brought the filing. ...(Emphasis added)

2. Jurisdiction is acquired over a party to ...[a] special proceeding by service upon such party a copy of ... the notice of petition and petition...

3. The actual index number shall be on the ... notice of petition and petition.... Failure to include the index number on the papers as served shall be cured by stipulation or by leave of the court, which shall not be unreasonably withheld. (Emphasis added)

As can be seen, there is one significant difference between the two statutes excerpted above: while both require filings to be delivered "to the clerk of the court in the county in which the ... special proceeding is brought" the CPLR has the added provision "or any other person designated by the clerk of the court for that purpose." Interestingly, the term "clerk of the court" has been interpreted by the Court of Appeals to mean the County Clerk, not the clerk of the Supreme or County courts. Mendon Ponds Neighborhood Association v. Dehm, 98 NY2d 745, 751 N.Y.S.2d 819. In Mendon, the petitioner attempted to commence an Article 78 proceeding by paying a fee to the County Clerk's office and obtaining an index number. It then submitted a petition and notice of petition to the office of the Chief Clerk of the Supreme Court where the matter was assigned to a Justice and given a return date. The papers were then served upon the respondents. Although the affidavits of service were ultimately filed with the County Clerk, the petitioner never filed the papers with the County Clerk. The Supreme Court granted the respondents' motion to dismissed and the decision was upheld by both the Appellate Division and the Court of Appeals. However, the Court of Appeals' decision is silent as to whether the Chief Clerk of the Supreme Court was "designated" by the County Clerk to accept papers for filing. [*6]

QUERY: Since NYCCCA § 400(1) requires filings to be delivered to the "clerk of the court in the county", and the Court of Appeals has determined that the "clerk of the court in the county" is the County Clerk, and there is no provision in NYCCCA § 400 for the designation of an alternate person to receive same, does a strict construction of the Civil Court Act require filings to be made with the County Clerk in each of the five counties within the City of New York instead of the clerks of the Civil Courts in each of the five counties? Further, is "Jack Baer" as "Chief Clerk" the clerk of the court in the county in which a proceeding is commenced?

Another factor to be considered is that nowhere in section 400 of the Civil Court Act does it mention or require the signature or stamp of the court clerk on an papers filed. Specific reference is made only to the date stamp. Moreover, the statute puts the burden on the clerk of the court to stamp the copy as well as the original. Thus, if the copy is returned to the petitioner without such stamp and inadvertently served upon the respondent, should the petitioner be penalized with dismissal of the proceeding for a "clerical" error by the court?

Finally, paragraph 3 of NYCCCA § 400 makes it clear that failure to include the index number on the papers served shall be cured. Thus, the argument made by the respondent herein that the index number on the papers he was served was hand written is of no relevance, as its omission altogether is not a basis for dismissal and must be cured. Clearly, the index number, which can only be obtained by paying a filing fee to the clerk of the court, is of far greater significance than the signature of said clerk and if its omission on the copies served will not render them invalid, then certainly the signature or stamp of the clerk of the court should be treated as nothing more than a de minimus defect.

In the end, the respondent's contentions really boil down to putting the form of the form over substance. While this Court recognizes that summary proceedings are statutory in nature, it also believes that practicality should override technicality, especially hyper-technicality, when there is no prejudice to the party alleging the defect and there is nothing to be gained by either party if this proceeding is dismissed. The petitioner will simply serve a new rent demand and thereafter serve a new notice of petition and petition, possibly generating more ill will between the parties than may currently exist. As a CAVEAT, however, even though minor omissions may not result in dismissal of a proceeding, the attorneys representing petitioners should make every effort to make sure that all necessary dates, stamps, index numbers, etc. are properly noted on the copies to be served to avoid challenges that could result in dismissal of the matter and the embarrassment of having to justify the dismissal to their client(s).[FN6]

II

According to CPLR R 2214 (a) and (c), a notice of motion shall contain "the supporting papers upon which the motion is based" and "[o]nly papers served in accordance with the provisions of this rule shall be read in support of, or in opposition to, the motion unless the court for good cause shall otherwise direct."

In the case at bar, the respondent attorney's Notice of Motion does not contain any affidavit from the respondent himself. As noted in the previous section, it was not notarized and mailed to the petitioner's attorney until six (6) days after the Notice of Motion was mailed to petitioner's attorney and five (5) days after it was filed with the clerk of the court. Thus, the Court [*7]is not under any obligation to take it under consideration in determining this motion. Attorneys must recognize the fact if they seek to derail a proceeding on technicalities, they, too, must be prepared to have their clients face the same consequences for any of their failures to follow the rules precisely and to the letter. If this Court declines to consider the respondent's affidavit, for which there was no request for leave of the Court for late service, then, clearly, counsel's statements, upon information and belief, that service of the demand for rent and the Notice of Petition and Petition were improper must be denied, as there is no sworn statement of actual knowledge as to those allegations. However, since the petitioner does not challenge these allegations in any detail, but for a footnote that "they merely entitle respondent to a traverse hearing", the Court, once again, will take the practical approach, in the interest of judicial economy and for the resolution of all the issues raised, in granting the respondent a hearing on traverse.

Accordingly, the motion to dismiss this proceeding is denied and the matter is calendared for traverse and trial on July 18, 2007. The parties are to report to Part C at 9:30 A.M. at which time it will be referred to the expediter for assignment to a trial part.

This constitutes the decision and order of the Court.

Date: June 15, 2007_____________________________

GEORGE M. HEYMANN, J.H.C. Footnotes

Footnote 1: RPAPL § 731(1) states that "[a] notice of petition may be issued only by an attorney, judge or clerk of the court. However, NYCCA § 401(c) provides that "[n]otwithstanding the provisions of section 731 of the real property actions and proceedings law, regarding issuance by an attorney, the notice of petition in a summary proceeding to recover possession of real property shall be issued only by a judge or the clerk of the court. The original petition shall be filed with the clerk at the time the notice of petition is issued.

Footnote 2: Citing First Avenue Owner's Corp. v. Riverwalk Garage Corp., supra, the court in 7204 5th Ave. Rlty Ltd v. Handy, L&T Index # 90988/06, Kings Co., 11/22/06, (Scheckowitz, J.), held that the printed identification of the clerk as "Jack Baer, Chief Clerk" in place of an official "signature" or "stamp" on the notice of petition "sufficiently complies with the statute and is not a material defect mandating dismissal."

Footnote 3: Gershel v. Porr, supra, differs significantly from this proceeding in that there the petitioner originally filed an executed order to show cause and petition with the clerk of the court, paid the filing fees, obtained an index number and served the papers. He subsequently withdrew the order to show cause and served a new notice of petition along with the previously filed petition. In affirming the reversal of the judgment of the Supreme Court by the Appellate Division, Second Department, the Court of Appeals held that once the petitioner withdrew the order to show cause, the first proceeding was effectively abandoned. By serving a newly drawn notice of petition along with the previously served petition, which comprised a new set of initiatory papers, without first satisfying the filing requirements there was no conformity between the papers served and the Supreme Court did not acquire jurisdiction.

Footnote 4:Siegel, New York Practice, Third Edition, § 63, states that "[t]he combination of Gershel and Fry is a Court of Appeals balancing of conflicting policies. Plaintiffs and petitioners are deterred from casualness by being put on notice that the technical requirements will be strictly construed, while defendants and respondents are warned that if they want to capitalize on technicalities they must mind there own procedures."

Footnote 5: Unlike CPLR § 304 which only requires the filing of the petition, in Civil Court the petitioner must file a notice of petition as well.

Footnote 6: See, Siegel, New York Practice, Third Edition, § 63