LANDLORD TENANT LAW: JURISDICTIONAL V. PROCEDURAL DEFECT

Martin v. Sandoval, 2015 NY Slip Op 50099 - NY: City Court, Peekskill 2015:

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The Respondent argues, pursuant to RPAPL §749(3)^[2] that the warrant of eviction should vacated because the affidavit of service was filed with the Court five (5) days from the date of its service instead of three (3) days as required by Real Property Actions and Proceedings Law ("RPAPL") §735(2)(a). That section states, in pertinent part,

The notice of petition, or order to show cause, and petition together with proof of service thereof shall be filed with the court or clerk thereof within three days after; personal delivery to respondent, when service has been made by that means, and such service shall be complete immediately upon such personal delivery; or mailing to respondent, when service is made by the alternatives above provided, and such service shall be complete upon the filing of proof of service.

It is well settled that a landlord's failure to comply with RPAPL §735(2)(a) by failing to file the requisite proof of service of a notice of petition and petition within three (3) days after service of same is not a jurisdictional defect. See, Siedlecki v. Doscher, 33 Misc 3d 18, 933 N.Y.S.2d 203 (App. Term, 2d, 11th & 13th Jud. Dists. 2011); Djokic v. Perez, 22 Misc 3d, 930, 872 N.Y.S.2d 263 (NY City Civil Ct. 2008); Friedlander v. Ramos, 3 Misc 3d 33, 779 N.Y.S.2d 327 (App. Term, 2d Dept. 2004); Zot Inc. v. Watson, N.Y.L.J., 7/30/08, p. 29, col. 1.; Lanz v. Lifrieri, 104 AD2d 400, 478 N.Y.S.2d 722 (2d Dept. 1984).

The vast majority of courts and commentators are of the view that filing a late affidavit of service in a summary proceeding can be excused or granted nunc pro tunc relief. See, Friedlander v. Ramos, supra; Zot v. Watson, supra; Mangano v. Ikinko, 958 N.Y.S.2d 308 (Ossining Just. Ct. 2010); Djokic v. Perez, 872 N.Y.S.2d at 268, quoting Ward v. Kaufman, 120 AD2d 929, 502 N.Y.S.2d 883 (4th Dept.)("The failure to file a timely affidavit of service is not a jurisdictional defect, but merely a procedural irregularity which can be cured by an order nunc pro tunc."); Finkelstein and Lucas, Landlord and Tenant Practice in New York, §15:350 [2014]; Fame Equities & Mgmt. Co. v. Malcolm, N.Y.L.J., 10/28/96, p. 27, col. 4 (App. Term, 1st Dept.)("failure to file proof of service is not a jurisdictional defect."); Ardo Corp. v. Bierly, N.Y.L.J., 3/21/94, p. 29, col. 6 (App. Term, 1st Dept.)("the court properly permitted nunc pro tunc filing of the Notice of Petition and proof of service since failure to comply with the filing requirement is not a jurisdictional defect."); Tasman v. Esposito, N.Y.L.J., 11/21/90, p. 27, col. 1 (App. Term, 9th and 10th Jud. Dists.)("The fact that the notice of petition and notice of petition and proof of service may not have been filed within three days after service as required is not a fatal jurisdictional defect Indeed a court is empowered to afford nunc pro tunc relief from its late filing."); 14 Carmody-Wait 2d §90:152 [2014].

However, since a summary proceeding is a special proceeding mandating strict compliance with its procedural requirements in order to give the court jurisdiction (See, Riverside Syndicate, Inc. v. Saltzman, 49 AD3d 402 [1st Dept. 2008], citing Berkley Assoc. Co. v. Di Nolfi, 122 AD2d 703, 505 N.Y.S.2d 630 [1st Dept. 1986], lv. dismissed 69 NY2d 804, 513 N.Y.S.2d 386, 505 N.E.2d 951 [1987]; MSG Pomp Corp. v. Doe, 185 AD2d 798, 586 N.Y.S.2d 965 [1992]), it would appear that noncompliance with the procedural requirement in RPAPL 735(2) that an affidavit of service be filed with the court within three (3) days after service of the notice of petition and petition mandates dismissal of the proceeding for lack of subject matter jurisdiction. See, Wendt and Benjamin, Service of Process under Section 735 of the RPAPL, NY State Bar Journal, April 1988, p. 38. Notwithstanding this kind of noncompliance, the Second Department has said [w]e adopt the reasoning of a recent trend of cases which treat summary proceedings the same way as any other type of civil case and which refuse to consider de minimis variations from strict compliance as jurisdictional defects. Lanz v. Lifieri, 104 AD2d at 401.

Since summary proceedings are now given a sort of de minimis variations analysis (See, Zot v. Watson, supra, Judge Kraus granted petitioner's motion to deem the affidavit timely filed, concluding that the short filing of the affidavit of service was a de minimis violation of RPAPL §735(2) and not fatal), the Court holds that even though the affidavit of service for the notice of petition and petition in the instant case was filed with the Court five (5) days after its service instead of three (3) as required by RPAPL §735(2) this constitutes a de minimis violation of RPAPL §735(2) and the Court is not divested of subject matter jurisdiction.

Filing proof of service does not relate to the jurisdiction of the Court which is acquired by the service of the summons or, in this case, by the service of the petition and notice of petition. See, Helfand v. Cohen, 110 AD2d 751, 487 N.Y.S.2d 836 (2d Dept. 1985). "The purpose of requiring the filing of proof of service pertains to the time within which the defendant must answer and does not relate to the jurisdiction acquired by the court upon service of the summons." See, Reporter Co., Inc. v. Tomicki, 60 AD2d 947, 401 N.Y.S.2d 322 (3d Dept. 1978); 86 NY Jur.2d, Process and Papers, §130 ("failure to file, or delay in filing, proof of service is merely a procedural irregularity and not jurisdictional and may be corrected nunc pro tunc by the court.")"