Rodriguez v Thomas
Annotate this CaseDecided on November 23, 2021
Civil Court of the City of New York, Bronx County
Suhlai Rodriguez, Petitioner,
against
Vincent Thomas, Respondent, DEPARTMENT OF HOUSING PRESERVATION & DEVELOPMENT OF THE CITY OF NEW YORK Co-Respondent.
L & T Index No. 303817/2021
Vincent Thomas
Respondent Pro-Se
Kyle C. Fowler, Of Counsel
THE LEGAL AID SOCIETY
Attorneys for Petitioner
Shorab Ibrahim, J.
Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.
The court has considered NYSCEF Doc. No.16 through 19 in reaching its decision on this motion seeking an order finding respondent in contempt.
BACKGROUND
Petitioner is the tenant of apartment 3 at 1049 East 233 Street, Bronx, New York. Respondent is the owner of the premises. On May 25, 2021, the court issued a default order to correct the outstanding violations issued by DHPD for petitioner's apartment.
Then, by motion dated July 20, 2021, petitioner moved, inter alia, for an order finding respondent in civil and criminal contempt. Petitioner, in pertinent part, alleges that the respondent made no attempt repair any of the violations referenced in the order to correct.
There being no opposition to the contempt motion and with the respondent never having appeared, the court held respondent in default and reserved decision.[FN1]
DISCUSSION
Based on several defects in the service of the underlying motion upon the named respondent, the motion must be denied. (see Metropolitan Life Ins. Co. v Young, 157 Misc 2d 452, 455, 596 NYS2d 653 [Civ Ct, New York County 1993] ("Given the personal liberty interest at stake, the statute must be strictly applied. Judicial scrutiny is especially important on default, where there is no adversarial process to expose deficient proof.").
First, the court notes that §756 of the Judiciary Law requires that the contempt motion be served "no less than ten and no more than thirty days before the time at which the application is noticed to be heard." The instant motion was noticed to be heard on October 26, 2021. Petitioner purportedly served the motion upon the respondent on August 4, 2021, more than eighty (80) days prior.
Though petitioner may have initially served the motion believing the court would calendar the matter for August 16, 2021,[FN2] by August 23, 2021, petitioner's counsel was aware of the October 26, 2021 return date and apparently made no further effort to comply with §756.[FN3] The court notes that petitioner's counsel was informed of the change through the court's upload to NYSCEF and via email sent on August 23, 2021, wherein the court notified counsel of the date change and requested proof of service of the motion prior to the new return date.[FN4]
When the procedural safeguards contained in §756 are not strictly followed, the court is without jurisdiction to entertain the contempt motion. (see Capello v Capello, 274 AD2d 538, 539, 712 NYS2d 41 [2nd Dept 2000]; see also Columbia Federal Savings Bank v Buyokas, 141 Misc 2d 785, 786, 534 NYS2d 643 [Sup Ct, Queens County 1988] ("[t]he defect cannot be excused as a mere irregularity. The upper limit on the return period, no less than the lower limit, is designed to ensure that the accused has a reasonable time in which to respond, neither so short as to preclude adequate preparation nor so lengthy as to tempt him to procrastinate and eventually forget to appear.")).
In addition, petitioner failed to comply with the Judiciary Law § 763 requirement that the motion for contempt be personally served, within the meaning of CPLR §308, upon the alleged contemnor.
CPLR §308(2) provides, in pertinent part, that personal service upon a natural person may be made "by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by ... mailing the summons to the person to be served at his or her last known residence." (see Nationstar Mortg., LLC v Kamil, 155 AD3d 966, 967, 64 NYS3d 116 [2nd Dept 2017] [emphasis added]).
A proper affidavit of service will reference both requirements of §308(2). (see Deutsche [*2]Bank National Trust Company v Ferguson, 156 AD3d 460, 461, 2017 NY Slip Op 08633 [1st Dept 2017] [affidavit of service references mailing to the last known address without giving that address]; Munoz v Reyes, 40 D3d 1059, 836 NYS2d 698 [2nd Dept 2007] [Jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been strictly complied with]). Here, the affidavit is devoid of any allegation that the papers were subsequently mailed to the respondent. (see also, Steele v Hempstead Pub Taxi, 305 AD2d 401, 402, 760 NYS2d 188 [2nd Dept 2003] (though process served on person of suitable age and discretion, no personal jurisdiction obtained as mailing required by §308(2) not done)).
Finally, the affidavit of service of the contempt motion suffers from another defect as it alleges that the process server "knew the person so served to be the authorized agent of the corporation, and said person stated that he/she was authorized to accept service on behalf of the corporation." [emphasis added]. However, the respondent is not a corporation, but a natural person. As such, the affidavit cannot create a presumption of proper service upon the respondent. (see Frankel v Schilling, 149 AD2d 657, 659, 540 NYS2d 469 [2nd Dept 1989] [[o]rdinarily, a proper affidavit of a process server attesting to personal delivery of a summons to a defendant is sufficient to support a finding of jurisdiction] (emphasis added and internal citations omitted)).
Based on the foregoing, petitioner's motion is denied in all respects. This constitutes the Decision of the Court.
Dated: November 23, 2021
Bronx, NY
SO ORDERED,
/S/
____________________
Shorab Ibrahim, JHC Footnotes
Footnote 1:On the initial return date of the contempt motion, a person purporting to be respondent's wife dialed into the conference. Ms. Thomas represented she is 80 years old, and that respondent is 78 years old. She represented that the respondent cannot walk and that she held a power of attorney for him. Ms. Thomas was informed that the case and the motion were being adjourned to November 17, 2021. However, a working email address was not provided to the court. As such, only the petitioner appeared for the November 17, 2021 conference.
Footnote 2:Petitioner's initial NYSCEF submission has August 16, 2021 as the return date.
Footnote 3:The court further notes that the notice of motion, while referring to a "teleconference," contains no instructions to the respondent on how he might access the teleconference, or even where he might get further information.
Footnote 4:By not serving the motion with the October 26, 2021 return date, the petitioner never actually notified the unrepresented respondent
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