Civil Court Of The City Of New York, Kings County
March 10, 2009
DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT (DHPD), PETITIONER,
JU JIN LI, RESPONDENT.
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.
QUERY: DOES THE MANNER OF SERVICE PURSUANT TO REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) §735, WHICH GOVERNS THE COMMENCEMENT OF ALL NON-PAYMENT AND HOLDOVER PROCEEDINGS IN HOUSING COURT, APPLY TO "SPECIAL PROCEEDINGS" BROUGHT IN THE "HP" PART BY DHPD AGAINST LANDLORDS TO CORRECT VIOLATIONS?
On March 17, 2007, DHPD commenced this proceeding pursuant to Section 110(a)(9) of the New York City Civil Court Act (NYCCCA) directing the respondent to correct all violations of the Multiple Dwelling Law (MDL) and the Housing Maintenance Code (HMC) existing at the subject premises located at 4824 7th Avenue, Brooklyn, New York 11220; for an order directing the respondent to file a current registration with DHPD; for a judgment for civil penalties for failure to register and for a judgment for civil penalties for failure to correct the violations set forth in the Verified Petition and annexed exhibits incorporated by reference therein.
The respondent failed to appear on the return date of April 17, 2008 and an inquest was taken. On April 30, 2008, an Inquest Order to Correct and Judgment for Civil Penalties in the amount of $157,265.00 was entered against the respondent.
The respondent has now moved by Order to Show Cause to vacate said default judgments and to dismiss the Verified Petition in its entirety.
The respondent claims that she has an excusable default in that service was defective pursuant to RPAPL§735 and a meritorious defense that the violations have been corrected.
DHPD opposes the motion contending that service was properly effectuated and that the respondent has failed to provide any documentation to support her conclusory statements that all the violations have been corrected.
According to counsel for DHPD, the respondent's address for service, 836 58th Street, 2nd Floor, Brooklyn, New York 11220, was taken from the deed for the subject premises, dated June 22, 2007, which lists Ju Jin Li as the Grantee/Buyer. (DHPD Aff. In Opp., Ex. C) The last property registration with DHPD, dated February 16, 2006, was filed by the previous owner. (Verified Petition, Ex. 3)
At issue here is the manner of service attested to by the process server in his affidavit of service, as follows:
"That on March 28, 2008 at 9:17 AM at 836 58 Street 2nd Floor; Brooklyn, NY 11220 (Last Known Residence) I served the Notice of Petition and Verified Petition upon Ju Jin Li respondent herein named by affixing the same upon the door.
That prior attempts to serve the respondent were made on March 26, 2008 at 6:45 PM and March 27, 2008 at 7:46 AM and March 28, 2008 at 9:17 AM
That on April 2, 2008 I deposited in the United States mail a true copy or copies of the Notice of Petition and Verified Petition properly enclosed and sealed in a post paid wrapper addressed to respondent at 836 58 street 2nd Floor; Brooklyn, NY 11220 (Last Known Residence)by first class mail, marked Personal and Confidential, and not bearing any identification to a lawsuit."
The affidavit of service was sworn to on April 3, 2008 and filed with the clerk of the court on April 8, 2008.
Before the Court can address whether the process of service conformed to the statutory requisites, it must determine whether actions commenced by DHPD are "special proceedings" that fall within or outside the rubric of RPAPL §735, which prescribes the manner of service in summary proceedings to recover possession of real property.
Although summary proceedings are "special proceedings" generally governed by Article 7 of the RPAPL "to recover possession of real property" (emphasis added),*fn1 actions commenced by DHPD are, likewise, "special proceedings" but have a different and unique purpose, separate and apart from the recovery of possession of real property. Along with the tenant-initiated proceedings for the correction os violations of the HMC, DHPD actions are initiated to enforce the standards set forth in the HMC and MDL and for the imposition of civil penalties for failure to comply (i.e.:, correct violations; certifying corrections; proper registration by owners; etc.).*fn2 These proceedings are prosecuted in the designated "HP" Part (Housing Part) which does not deal with non-payment or holdover proceedings in which landlords are seeking possession of their property for tenants' failure to pay rent or for substantial violations of the obligations of their lease.
Thus, RPAPL Art. 7 is not pertinent to HP proceedings. Hence, DHPD must utilize the provisions of the Civil Practice Law and Rules (CPLR) and NYCCCA in order to institute its proceedings in Housing Court.
As a special proceeding, the analysis starts with CPLR §403(c) which simply provides that service shall be in the same manner as a summons in an action. That service is governed by the provisions of §308, specifically subdivision 4 as it applies in this case*fn3. However, as the Housing Court is a part of the NYC Civil Court, the NYCCCA provisions regarding service must be read in conjunction therewith and harmonized to resolve any inconsistencies with the CPLR. Similar to CPLR §403, NYCCCA §403 provides that "service of summons shall be made in the manner prescribed in supreme court practice..."
In reviewing the affidavit of the process server, as set forth above, vis a vis the filing of proof of service with the clerk of the court and the completion of service, it is clear that based on the alleged first class mailing of the Notice of Petition and Verified Petition on April 2, 2008, which was within the twenty (20) day period after the alleged affixation of same on the door of the subject premises on March 28, 2008, and the subsequent filing with the clerk of the court on April 8, 2008 within six (6) days of the twenty (20) days allowed after the mailing, that service was carried out within the mandated time frames enunciated in CPLR §308(4).*fn4
Pursuant to CPLR §308(4), service would be complete on April 18, 2008, ten (10) days after the filing on April 8, 2008. Notwithstanding that the time constraints of CPLR §308(4) were met, the respondent's attorney challenges the Court's jurisdiction over his client on the additional ground that there was short service by one (1) day, as the Notice of Petition required the respondent to appear in Court on April 17, 2008 and service was not complete until the next day.
At first blush, it would appear that the respondent's argument is correct, especially in light of DHPD's position that CPLR §308 provides the proper method of service to be utilized in these special proceedings.
However, the provisions of the CPLR cannot be read in a vacuum when applied to the local courts and reference must be made, as in this instance, to the requisites of the NYCCCA. In this regard, the Court directs its attention to sections 409(a) and 410(b) of the NYCCCA, which provide that proof of service of the Notice of Petition and Petition must be filed with the clerk of the court and service of the summons (in special proceedings the "petition") is complete upon filing of proof of service, respectively.
Moreover, as stated in NYCCCA §2102, the provisions of the CPLR (i.e.: §308) regarding practice in supreme court shall apply in the Civil / Housing Court "as far as the same can be made applicable and are not in conflict with this act." Since the NYCCCA provides that service is complete upon proof of filing with the clerk where there is conspicuous service, the service herein was complete on April 8, 2008 and there is no additional ten (10) day waiting period as required under CPLR §308(4). Therefore, processes was timely served and the April 17, 2008 return date did not constitute short service depriving the Court jurisdiction over the respondent.
Assuming, arguendo, that the completion of service was one (1) day after the date on which the respondent was to appear and answer the petition, based on this Court's recent decision in Djokic v. Perez, ____ Misc 3d ____ , 2008 NY SlipOp 28502, the outcome would have been the same, as the defect would be de minimus and would not deprive the Court of jurisdiction. As stated therein: "the filing is no longer the determinating factor in light of CCA 409 and the Court [has the] ability to disregard' the late filing pursuant to CPLR 2001, where no substantive irregularities to service are raised and there is no prejudice to the parties."
Accordingly, the respondent's motion to dismiss on the ground that service of process did not comport with RPAPL §735 is denied.
This determination does not, however, conclude the Court's inquiry, based on the respondent's allegations, as to whether the process server used "due diligence" to deliver the Notice of Petition and Verified Petition prior to "affixing" them to the door of respondent's last known residence and whether he did, in fact, "affix" them to the door.
While counsel for DHPD maintains that the contradictory statements in the respondent's affidavits are insufficient to rebut the process server's sworn affidavit relying on Facey v. Heyward,244 AD2d 452 (2nd Dept., 1997) and Matter of Rosa v. Board of Examiners of the City of New York, 143 AD2d 351 (2nd Dept., 1988), it should be noted that the Facey court was affirmed after conducting a hearing on whether the respondent received a copy of the summons and complaint in the mail, whereas the court in Matter of Rosa was reversed for not conducting a hearing.
Therefore, this matter is set down for a traverse hearing on April 28, 2009 at 2:30 P.M. If traverse is overruled, the Court will then conduct a hearing on the respondent's meritorious defense regarding vacatur of the violations and the civil penalties assessed thereon.
This constitutes the Decision and Order of the Court.