Lehman Bros. Holding Inc. v Melton

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[*1] Lehman Bros. Holding Inc. v Melton 2010 NY Slip Op 50541(U) [27 Misc 3d 1204(A)] Decided on April 6, 2010 District Court Of Nassau County, First District Fairgrieve, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 6, 2010
District Court of Nassau County, First District

Lehman Brothers Holding Inc., Petitioner(s)



SP 007198/09

Rosicki, Rosicki & Associates, P.C., Attorneys for Petitioner, 51 East Bethpage Road, Plainview, New York 11803, 516-741-2585; Ezratty, Ezratty & Levine, LLP, Attorneys for Respondent, 80 E. Old Country Road, Mineola, New York 11501, 516-747-5566.

Scott Fairgrieve, J.

Petitioner purchased the subject premises on May 5th, 2009 by way of a foreclosure sale. Respondent was served with a ten (10) day notice to quit on November 11th, 2009 and the notice of petition and petition on December 14th, 2009. Service of the notice of petition and petition was made by conspicuous place service, followed by Certified and First Class U.S.P.S. mailings on December 15th, in compliance with RPAPL § 735(1). Affidavits of service were filed with the Clerk on December 17th, which constituted completion of service under RPAPL § 735(2).

Pursuant to RPAPL § 733(1), "the notice of petition and petition shall be served at least five and not more than twelve days before the time at which the petition is noticed to be heard." The dispute between the parties in the case at bar is how to define a "day" which would impact the calculation of whether the notice of petition and petition were served the statutory minimum five (5) days before the hearing date of December 22nd, 2009. [*2]

Respondent contends that service was completed only four (4) days prior to the hearing and that service must always be rendered no less than one hundred and twenty (120) hours prior to a hearing. Respondent bases his argument on the definition of a "calendar day" contained in General Construction Law § 19 which states: "the time from midnight to midnight."

Respondent relies on Berkeley Associates Co. v. Di Nolfi (122 AD2d 703, 505 NYS2d 630 [1st Department,1986]). However, the facts of the case cited do not support Respondent's reliance on it. In Berkeley, service was completed on the August 11, 1980 and the hearing date was the 12th, "only one day after service was completed. Pursuant to RPAPL 733, this matter should not have been made returnable until August 16, 1980, at the earliest. This difference of four days clearly prejudiced [Respondent]..."

The First Department stated in Berkeley that service on the 11th of the month for a hearing on the 16th does, in fact comply with RPAPL § 733(1). In the instant case, service was completed on the 17th and the hearing was on the 22nd, rendering service the same five (5) days prior to the hearing as in Berkeley.

Respondent also misinterprets General Construction Law § 19. The full statute reads:

§ 19. Day, calendar

A calendar day includes the time from midnight to midnight. Sunday or any day of the week specifically mentioned means a calendar day.

Respondent quotes only the first sentence of this statute in his moving papers when stating that one hundred and twenty (120) hours must pass between service and the hearing. However, the second sentence of the statute eliminates the need to count hours as any day specifically mentioned is a calendar day. Those days include the 17th, 18th, 19th, 20th, 21st, and 22nd.

Additionally, General Construction Law § 20 provides that when calculating the five (5) day period prior to the hearing, the day of service should not be included in the count. The statute reads:

§ 20. Day, computation

A number of days specified as a period from a certain day within which or after or before which an act is authorized or required to be done means such number of calendar days exclusive of the calendar day from which the reckoning is made. If such period is a period of two days, Saturday, Sunday or a public holiday must be excluded from the reckoning if it is an intervening day between the day from which the reckoning is made and the last day of the period. In computing any specified period of time from a specified event, the day upon which the event happens is deemed the day from which the reckoning is made. The day from which any specified period of time is reckoned shall be excluded in making the reckoning. [*3]

The exclusion of the day of service is best explained in American Law Reports (98 A.L.R.2d 1331, Inclusion or exclusion of first and last days in computing the time for performance of an act or event which must take place a certain number of days before a known future date):

II. Generally

§ 3[a] General rule; one day included—one day excluded—Statement of general rule

In the absence of anything showing an intention to count only "clear" or "entire" days, it is generally held that in computing the time for performance of an act or event which must take place a certain number of days before a known future day, one of the terminal days is included in the count and the other is excluded. The following cases have followed or recognized this rule expressly or by necessary implication:

. . .

New York

Re J. T. Robertson Co. (1938, DC NY) 26 F Supp 870, affd (CA2) 101 F2d 1012 (applying New York law)

Re Parkway Knitting Mills, Inc. (1941, DC NY) 36 F Supp 299, affd (CA2) 119 F2d 605, cert den 314 US 646, 86 L ed 519, 62 S Ct 89 (applying New York law). See also Westgate v Handlin (1853) 7 How Pr 372, infra § 26[d]

People v Burgess (1897) 153 NY 561, 47 NE 889

H. E. & S. Transp. Corp. v Checker Cab Sales Corp. (1936) 271 NY 239, 2 NE2d 642

Jones v Wallace (1902) 75 App Div 401, 78 NYS 35

Carter v Brockway Motor Co. (1936) 248 App Div 734, 288 NYS 720

Fisk Discount Corp. v Brooklyn Taxicab Transp. Co. (1946) 270 App Div 491, 60 NYS2d 453

Re Bayne (1910) 69 Misc 579, 127 NYS 915

Cross v Cohen (1944) 183 Misc 611, 50 NYS2d 42 (dictum)

Vorce v Retschle (1945) 185 Misc 166, 57 NYS2d 450, infra § 28

Charles v Stansbury (1808) 3 Johns 261

Gillespie v White (1819) 16 Johns 117

Small v Edrick (1830) 5 Wend 137 (stating general rule)

Columbia Turnpike Road v Haywood (1833) 10 Wend 422

Vandenburgh v Van Rensselaer (1836) 6 Paige 147 (dictum)

Easton v Chamberlin (1849) 3 How Pr 412

Dayton v McIntyre (1850) 5 How Pr 117

Taylor v Corbiere (1853) 8 How Pr 385

Bunce v Reed (1853) 16 Barb 347, ovrld on other grounds Soule v Chase (1863) 24 NY Super Ct (1 Robt) 222, 1 Abb Pr NS 48, revd on other grounds 39 NY 342

Howard v Hatch (1859) 29 Barb 297

Ball v Mander (1860) 19 How Pr 468

Central Bank of Westchester County v Alden (1871) 41 How Pr 102

Re Carhart (1884) 2 Dem 627, 67 How Pr 216

. . . [*4]

Also to effect that one terminal day is included, one excluded:


In re Estates of Brillon, 142 Misc 2d 124, 536 NYS2d 397 (Sur. Ct. 1988)

There is no intent found in RPAPL § 733(1) of counting only "clear" or "entire" days. Therefore, based upon General Construction Law § 20 and American Law Reports (98 A.L.R.2d 1331), only the day of service, December 17th, 2009 will be excluded from the count. The Court calculates the time between service and the hearing as follows:

December 18Calendar Day 1

December 19Calendar Day 2

December 20Calendar Day 3

December 21Calendar Day 4

December 22Calendar Day 5

An illustration of this computation is given in New York Jurisprudence, Second Edition, § 139. Computation of time within which to make service:

Illustration: A motion was timely served pursuant to statute [NY C.P.L.R. 2103(b)(2), 2214(b)] where the motion papers were mailed on November 10 and the return date for the motion was November 23 since the required 13 days between the mailing date and the return date existed...

Though the illustration involved a Surrogate's Court proceeding that required thirteen (13) days instead of the five (5) to twelve (12) required in this non-payment proceeding, the computation was nonetheless the same: service was made on the 10th, the hearing date was the 23rd, and the computation is thirteen (13) days. The day of service was not counted, but all days afterward were counted, including the day of the hearing. This is identical to this Court's computation of the case at bar.

Other courts have computed the time within which to make service using the same method as prescribed above: 1. 445 East 85th Street, L.L.C. v. Phillips (NYS2d, 2003 WL 22170112 [N.Y.City Civ.Ct.,2003])

2. Djokic v. Perez (22 Misc 3d 930, 872 NYS2d 263 [N.Y.City Civ.Ct.,2008])

3. Frank v. Ange (82 Misc 2d 465, 370 NYS2d 365 [N.Y.City Ct. 1975]


Petitioner has complied with RPAPL § 733(1). Respondent's motion to dismiss is denied. This case is set down for conference on April 15th, 2010 at 9:30 A.M. with clients. [*5]

So Ordered:



Dated:April 6, 2010

CC:Ezratty, Ezratty & Levine, LLP

Rosicki, Rosicki & Associates, P.C.