The opinion of the court was delivered by: George M. Heymann, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
This owner use holdover proceeding was commenced with the service of a petition and notice of petition on the respondent by substituted service on her son "John" Perez on February 19, 2008 with copies mailed to the respondent by certified and regular mail the following day, February 20, 2008.*fn1 According to the clerk's date and time stamp, the notice of petition and petition and affidavit of service were filed on February 25, 2008 at 3:59 P.M.. The matter was noticed to be heard on February 29, 2008.
On February 29, 2008, the respondent sought an adjournment to obtain counsel. No answer was served upon the petitioner or filed with the Court on that date and the matter was adjourned to March 24, 2008. On March 24, the Court denied an application for another adjournment and the case was referred to the Expediter for trial. While waiting to be assigned to a trial part, respondent retained counsel. Due to the late hour when case was finally before the court, it was further adjourned to March 31, 2008. No application for an extension to file a written answer was made by the respondent. A written answer was served on the petitioner on March 28, 2008.
The respondent has moved for dismissal on the grounds that the Court lacks jurisdiction as the notice of petition was not filed with the Court within three days of mailing as required by Real Property Actions and Proceedings Law (RPAPL) 735 (2) and petitioner failed to complete service of the notice of petition and petition by filing proof of service at least five days prior to the date the petition was noticed to be heard in accordance with RPAPL 733 (1).
The petitioner cross moved for an order denying the respondent's motion to dismiss; correcting the "clerical error" of the clerk's date and time stamp to "accurately reflect" that the filing was made February 22, 2008 and striking the service of the written answer, dated March 28, 2008, as untimely.
APPLICABLE STATUTES (IN RELEVANT PARTS)
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.
RPAPL 735(2): The notice of petition ...and petition together with proof of service thereof shall be filed with the court or clerk thereof within three days after;
(b) mailing to respondent, when service is made by the alternatives above provided [service on a suitable person or affixing to a conspicuous part of the property sought], and such service shall be complete upon the filing of proof of service.
RPAPL 743: ... If the notice of petition was served at least eight days before the time at which it was noticed to be heard and it so demands, the answer shall be made at least three days before the time the petition is noticed to be heard and, if in writing, it shall be served within such time; whereupon any reply shall be served at least one day before such time.
CPLR 409(a): Proof of service of the ... notice of petition and petition ...shall be filed with the clerk of the court in the county in which the action is brought.
CPLR 2001: At any stage of an action, including the filing of a ... petition to commence an action, the court may permit a mistake, omission, defect or irregularity, ... or other mistake in the filing process, to be corrected, upon such terms as may be just, or if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded ...
To clarify the sequence of events in the instant matter, the Court has created the following time-line:
12 DAYS EARLIESTSUBSTMAILING8 DAYS ALLEGED 3RD DAY 5DAYS FILED ANSWER HEARING PRIORDAY TO SERVE ...