NOT A JURISDICTIONAL DEFECT

US Bank Nat'l Ass'n v. Tran, NYLJ October 16, 2019, Date filed: 2019-10-03, Court: District Court, Nassau, Judge: Judge Scott Fairgrieve, Case Number: LT-003391-19:

"Respondent states that RPAPL 713(5) requires that Respondents be served with a “certified deed” but a photocopy is legal. See Plotch v. Dellis, 60 Misc 3d, 1 (App Term, 2nd & 9th Jud Dist). Respondent states that an original certification of the deed must be filed with the court after service of the photocopy of same. Respondent avers that since Petitioner failed to file an original certification, this summary proceeding must be dismissed. This constitutes a jurisdictional defect.
…….

Petitioner contends that Plotch v. Dellis was concerned with two issues:

(1) Whether personal delivery of a certified copy of the deed is required?

(2) Does the copy of the certified deed served need to be an original, or does a copy suffice?

Petitioner states that it complied with the holding of Plotch by service of a certified copy of the certification of the deed by an attorney admitted to practice in New York pursuant to CPLR 2105. The method of service upon Thi Van Tran is not contested by Respondent. Petitioner contends that the holding of Plotch does not require a filing of an original certification. Thus, Petitioner concludes that no jurisdictional issue is involved. Any failure to file the original is a de minimis defect which can be cured by “Petitioner producing such original upon request of the court or the Respondent, or through production at trial.”
…….

This court agrees with Petitioner, that the failure to file the original certification of the deed pursuant to the requirements of CPLR 2105 is not a jurisdictional defect requiring dismissal.

In Plotch the Court held the following:

“This section of the CPLR requires that the attorney ‘subscribe’ the certificate. It is undisputed that petitioner’s attorney signed the original certification,1 that a photocopy was then made of that document, and that the photocopy was served on occupants. We find that this procedure comports with the requirements of CPLR 2105, for the reasons set forth out in Federal Natl. Mtge. Assn. v. Wagshcal (NYLJ, Jan. 31, 2011, at 33, col 4 [Civ Ct, NY County 2001]; but see Security Pac. Natl. Trust Co. v. Cuevas, 176 Misc 2d 846, 675 N.Y.S.2d 500 [1998]).

As can be gleaned from the above, service of the photostatic copy of the deed was upheld because the original certification of the deed by the attorney was filed with the Court.

In the case at bar, Petitioner failed to file the original certification.

Petitioner contends that it is not jurisdictional for its failure to file the original certification, and that it should be allowed to correct this mistake. Respondent counters that the failure to file the certification is jurisdictional mandating dismissal.

This court believes that the failure to file the original certification is not a jurisdictional defect and may be corrected by the Petitioner by filing the original certification.

In Hall v. Bray, 61 Misc 3d 921, 86 NYS 3d 393 (Bronx Co, Sup Ct, 2018), the plaintiff failed to file an affidavit of compliance and other documents required by Vehicle and Traffic Law Section 253. The defendant moved for summary judgment to dismiss the action because the failure to file the affidavit of compliance and other documents constituted a jurisdictional defect requiring dismissal of the action on statute of limitation grounds. The Court rejected the defendant’s argument that failure to file was jurisdictional. The Court held the failure to file the documents required by VTL §253 was a procedural irregularity and could be corrected by the filing of the documents.

“It is well settled that a statute permitting service of process other than by personal service must be strictly complied with in order to confer jurisdiction [over the defendant] upon the *927 court” (Air Conditioning Training Corp. v. Pirrote, 270 App Div 391, 393 [1st Dept 1946]). Vehicle and Traffic Law §253 is no exception (Bingham v. Ryder Truck Rental, 110 AD2d 867 [2d Dept 1985]). However, as observed by the Court in Air Conditioning Training Corp., ‘[t]here is…a difference between service and proof of service. One is a fact of which the other is the evidence’ (270 App Div at 393). Thus, the failure to file proof of service is a procedural irregularity — not a jurisdictional defect — and the court, employing CPLR 2004, may extend a plaintiff’s time to file such proof (First Fed. Sav. & Loan Assn. of Charleston v. Tezzi, 164 AD3d 758 [2d Dept 2018]; Khan v. Hernandez, 122 AD3d 802 [2d Dept 2014]; see Lancaster v. Kindor, 98 AD2d 300, 306 [1st Dept 1984] [delay in filing proof of service is mere procedural irregularity that may be corrected]). The filing of the proof of service does have an important (but non-jurisdictional) consequence: it pertains to the time within which a defendant must answer or move against the complaint (Lancaster v. Kindor, 98 AD2d at 306).

Generally, the case law regarding the failure to file proof of service addresses situations where a plaintiff did not file proof of service after effecting service under CPLR 308 (2) — deliver-and-mail — or 308 (4) — affix-and-mail. Both of those service provisions require an ‘affidavit of service’ to be filed by a plaintiff after the required service steps are taken. Service is deemed ‘complete’ 10 days after the filing of an affidavit of service; a defendant’s time to answer or move against the complaint runs from the completion of service (see CPLR 308 [2], [4]).

The affidavit of compliance called for by Vehicle and Traffic Law §253 is the equivalent of the affidavit of service required under CPLR 308 (2) and (4). The affidavit of compliance, like the affidavit of service, is evidence of service, not service itself (see generally Air Conditioning Training Corp. v. Pirrote, 270 App Div at 393). The name of the Vehicle and Traffic Law §253 affidavit makes that point plain: the ‘affidavit of compliance’ is designed to demonstrate that the plaintiff complied with the service steps laid out in the statute. Thus, plaintiff’s failure to file timely the affidavit of compliance did not constitute a jurisdictional defect. Similarly, plaintiff’s failure to file timely the certified-mailing envelope bearing the “unclaimed” notation and the certificate of mailing evidencing that plaintiff sent the process by ordinary mail did not constitute a jurisdictional defect (see Albrecht v. Gordon, 182 AD2d 1131 [4th Dept 1992]; see also Michaud v. Lussier, 6 AD2d 746 [3d Dept 1958] *928 [construing the predecessor statute to Vehicle and Traffic Law §253], affd 7 NY2d 934 [1960]; Johnson v. Bunnell, 8 AD2d 832 [2d Dept 1959] [same]).” See Navillus Tile, Inc. v. LC Main, LLC, 98 AD3d 979, 950 NYS2d 748 (2nd Dept 2012) wherein the Court granted the time to file an application for an extension of a lien nunc pro tunc where the application was timely filed but not presented to a judge until after the extension date pursuant to CPLR 2004.

Based upon the above, Respondent’s motion is denied. Plaintiff shall file the required original certification within 10 days of the date of this decision. Failure to file the original certification within 10 days shall result in dismissal of this proceeding."